Getting Green in Indian Country: Two Sides of the Buffalo Nickel

A recent study conducted by Small Business America, reveals that  “[a]cross all industries and at both ends of the political spectrum, entrepreneurs overwhelmingly support government investing in renewable energy and creating clean energy policies that will help guide them into a new economic sector where they can do business.”   The study found that “71 percent believe government investments in clean energy play an important role in creating jobs now.”

The federal government is trying its best to make this happen.  President Obama’s goal of generating 80 percent of the nation’s electricity from clean energy sources by 2035 has led to numerous projects on millions of acres of public lands, most in Western states.  The administration has put some of the most promising, shovel-ready projects on a “fast track” for Bureau of Land Management (“BLM”) permitting.  In issuing these permits, federal officials say “they have consulted with multiple tribes and have either made sure the massive solar projects will not harm any historic works or have determined that certain sites are not worthy of protecting.”

But, apparently, the Fed’s idea of what it means to “consult” in making this determination is something other than required by its own clearly defined laws and regulations.  In 2010, for instance, the BLM allowed a solar project to move forward without adequately consulting the tribe whose areas of cultural significance would be directly affected by the project.   Luckily, the tribe was able to obtain an injunction in federal court that put an end to the project before those areas could be harmed.   See Quechan Tribe v. U.S. Dep’t of Interior, 755 F.Supp.2d 1104 (S.D. Cal. 2010) (“[I]f the tribe hasn't been adequately consulted and the project goes ahead anyway, this legally-protected procedural interest would effectively be lost.”).

The Colorado River Indian Tribes were not as fortunate.   Late last month, a solar project named “Genesis” uncovered a human tooth and a handful of burned bone fragments the size of quarters on a sand dune in the shadow of new solar power transmission towers.  As reported by the LA Times:

As a federally recognized tribal group with sovereignty over a 264,000-acre reservation, the Colorado tribes were offended that the BLM approved Genesis without holding “nation-to-nation” consultations with them.  Before construction began, archaeologists had warned that the site near Ford Dry Lake was rich with Native American history.  [D]uring construction last November, workers uncovered a pair of grinding stones and what appeared to be a layer of charcoal. The Colorado tribes say they are evidence of a sacred cremation site.  Genesis claims they are insignificant artifacts. . . . NextEra warns that yielding to the tribes’ demands could result in costly delays that jeopardize completion of the 250-megawatt plant, which is being built on BLM land with the help of an $825-million loan guaranteed by federal taxpayers. . . . Native Americans insist they are not against renewable energy.  The problem is that some solar projects were approved for lands that are an essential part of Indian religion, culture and history — without consultation with affected tribes.

 To be clear (federal agencies take note): “Meaningful consultation means tribal consultation in advance with the decision maker or with intermediaries with clear authority to present tribal views” to the agency decision maker.  This usually comprises of a meeting, during which the federal agency notifies the tribe of the proposed action and justifies its reasoning.  The tribe may then issue a motion of support for the decision, or reject the decision, pursuant to tribal law or procedure.  Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395, 401 (D.S.D. 1995).

The other side of the coin is that, contrary to being “against renewable energy,” tribal governments are in the best position to utilize their land to develop these projects in a manner that is consistent with their culture and tradition, and are actively seeking to do so.  By the numbers, these developments should be paying off: An estimated $1 trillion in revenue is possible were Indian country to fully develop its energy resources.  With tribes already feeling the brunt of global warming, the environmental benefits of using alternative energies to support the next generation are increasingly being explored. Where unemployment levels are disproportionately high in Indian country, perhaps equally important is that alternative energies are job-creating hothouses.

But as I noted last summer, the federal government has failed to allow tribes to enter the alternative energy market at all.  In short, were a Tribe to chose to develop its own lands in a similar manner – save for the disturbance of its areas of cultural and spiritual significance – the project would have been a dead end.  Pursuant to 25 U.S.C. § 415, transactions involving the transfer of an interest in Indian trust land must be approved by the Bureau of Indian Affairs (“BIA”).  And even where the tribe structures the project without leasing its land, 25 U.S.C. § requires that the BIA approve contracts that could “encumber” Indian lands for a period of seven or more years.  In these instances the BIA approval process constitutes a “federal action,” which triggers a slew of federal laws that the BIA must comply with – laws that can take over 12 years to comply with and can generate millions of dollars in additional cost.

In August of 2010, Senator Byron Dorgan (D-ND) introduced S. 3752, “[a] bill to amend the Energy Policy Act of 1992 to streamline Indian energy development, to enhance programs to support Indian energy development and efficiency, to make technical corrections.”  In short, the bill attempted to reduce the Federal burdens through mandated interagency coordination of planning and decision-making; regulatory waiver provisions; relief from land transaction appraisal requirements; and the elimination of fees assessed by Bureau of Land Management for applications for permits to develop Indian lands.  But the bill died before it was introduced to the full Senate.

More recently, in October of last year, Senator John Barrasso (R-WY) introduced S. 1684, “[a] bill to amend the Indian Tribal Energy Development and Self-Determination Act of 2005.”  Although not as robust as S. 3752, S. 1684 is significant in that it makes the Tribal Energy Resource Agreement (“TERA”) provision of the Indian Tribal Energy Development and Self-Determination Act of 2005 somewhat workable.  Section 103 of the bill extends an approval exemption to leases, business agreements, and rights-of-way granted by a tribe to a tribal energy development organization in which the tribe maintains a controlling interest, thereby expanding the opportunity for access to capital for direct tribal development without federal approval where the tribe continues to control the activity.  This Section also provides for a favorable tribal capacity determination based on a tribe’s performance of 93-638 contracts or self-governance compacts over a three year period without material audit exceptions; allows for TERA funding transfers to be negotiated between the BIA and the tribe based on cost savings occasioned by the Interior Department as a result of a TERA; and confirms that TERA provisions do not waive tribal sovereign immunity.

Last week, the Senate Committee on Indian Affairs held a hearing on S. 1684, where numerous tribal officials indicated their support for the bill.  Although many officials submitted that “biggest problem is what is not in the bill” – as “S. 1684 barely scratches the surface of outdated laws and regulations, bureaucratic regulatory and permitting processes, and insufficient federal staffing or expertise to implement those processes” – the overall sentiment was that S. 1684 is a much needed step in the right direction.  As noted by Tex G. Hall, Chairman of the Mandan, Hidatsa, and Arikara Nation of the Fort Berthold Reservation: “If Indian tribes are going to unlock the potential of their energy resources and provided needed domestic energy supplies, we need real changes in the law.  Changes that affirm tribal authority, provide tribes access to funding and financing opportunities, and allow tribes to participate in federal energy programs that have over looked tribes for decades.”

The next step will be for the Senate Committee on Indian Affairs to consider mark-ups to the bill.  A fine line will need to be towed.  Hopefully, considering the testimony of tribal leaders submitted last week, mark-ups can make the bill as hearty as the previously introduced S. 3752.  However, a step in the right direction is better than no steps at all, and any changes that will furnish the bill a similar fate should be avoided.

Hopefully both sides of the coin – cultural property protection in the face of any callous non-Indian energy development, and streamlined tribal energy development for sake of tribal self-determination – can be realized by the revised S. 1684.  The protection of Indian Country, both in the long and short term, quite literally depends on it.

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.

The Grassley-Hutchinson VAWA Amendment is an Affront to Tribal Sovereignty

Senate amendments to the Violence Against Women Reauthorization Act (“VAWA”) should be completed today.   According to Senate Minority Leader Mitch McConnell (R-Ky.), “Republicans are working with Democrats on an agreement to consider just a few amendments to the bill, and a short time agreement on those amendments.” From the very beginning, Sen. Chuck Grassley (R-IA) had opposed the VAWA, even requesting that Senate Judiciary Republicans unanimously vote against it because of what he believes are “problematic provisions of the committee bill [that] would give tribal courts authority to arrest, try and imprison any American” – provisions that he believes are “probably unconstitutional.”  Now, Senator Grassley has teamed up with Sen. Kay Bailey Hutchison (R-TX) to offer “a substitute that would address GOP concerns with the bill.”  Although the full details of Grassley and Hutchinson’s changes have yet to be released, it is likely that they will map their previously stated opposition to providing tribal jurisdiction over non-Indians.

These “concerns” are unfounded and, quite frankly, offending.

Prior to the Supreme Court’s decision of Oliphant v. Suquamish Indian Tribe in 1978, tribal governments had full authority to exercise criminal jurisdiction over non-Indians who voluntarily entered into Indian Country and committed crimes.  Lifting restrictions on the ability of tribal governments to exercise this inherent sovereign authority is by no means unconstitutional.  Because the Court’s decision in Oliphant was rooted in federal common law – bluntly racist common law denouncing tribal governments as “inferior” and “dependent upon the fostering care and protection of the [United States],” United States v. Sandoval (1913) – the Supreme Court has held that Congress has full authority restore the pre-1978 status-quo by “lift[ing] the restrictions on the tribes’ criminal jurisdiction.”  United States v. Lara (2004).  In the VAWA Congress has partially done so, and with full constitutional authority.

According to a recent iteration of the Senators’ argument put forth by the Heritage Foundation: “Today, if John and Mary Smith were visiting a casino on an Indian reservation and John assaulted Mary, John would be charged by the federal government with assault and would be prosecuted by the local U.S. Attorney’s Office in federal magistrate court.”

This, of course, is the problem. Were the local U.S. Attorney’s Office doing its job, Indian women would not face a 34-percent chance of being raped.  Evidence collected by the Justice Department, as well as nongovernmental organizations such as Amnesty International, indicate that an overwhelming majority of these cases are going unreported, uninvestigated, and unprosecuted.  Rather than leaving the protection of Indian Country up to federal police forces and prosecutors who have proven themselves incapable and uninterested in putting an end to reservation crime since the sole authority to do so was vested there in 1978, in the VAWA Congress has, correctly for once, determined that tribal justice systems are in the best position to turn things around.  Indeed, the Senators and the Heritage Foundation recognizes this logic vis-à-vis the states: “To address the problem of domestic violence appropriately, the federal government should limit itself to handling tasks that have been assigned to it by the Constitution and which state and local governments cannot perform by themselves.”  Why that same logic does not apply to Indian Country, the Senators and their constituents do not, and cannot, offer an explanation.

Moreover, the Senators are flat-out wrong in assuming that the VAWA would have much play, if any, in this hypothetical.  The VAWA authorizes tribes to exercise criminal jurisdiction only: (1) over domestic violence, (2) when the victim is an enrolled member of an Indian tribe, and (3) where the defendant resides in Indian Country, is employed by the prosecuting tribe, or is a spouse or intimate partner of a member of the prosecuting tribe.  So, unless Mary Smith was a member of an Indian tribe, assuming that John and Mary were married, the tribe would not have jurisdiction over John under the VAWA.

And, of course, no Republican discussion of tribal court jurisdiction would be complete without the obligatory talk of inferior tribal justice systems that are incapable of upholding non-Indian constitutional rights and notions of due process: “A non-Indian subject to tribal jurisdiction would enjoy few meaningful civil-rights protections. Courts have held, for example, that tribal governments are not bound by the Constitution’s First, Fifth, or Fourteenth Amendments.  What this means is that if somebody is accused of abuse on tribal lands, the accused can kiss normal constitutional protections good-bye.”

Of course, this is wrong.  The Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1301-1303, requires that tribal courts provide all rights accorded by state and federal courts.  Section 904 of the VAWA also requires that tribal courts provide further minimal guarantees of fairness.  If the ICRA and VAWA are not followed, federal courts have jurisdiction to review the tribal court proceedings – and the VAWA further requires that federal courts grant a stay of the tribal proceeding if there is a substantial likelihood that those provisions of federal law were not followed.  Further, the VAWA does not raise the maximum one-year sentence that tribal courts may impose for any crime.

To any extent that the Senators are arguing that tribal courts are somehow incapable of providing the requisite safeguards, this red herring – based on the same racist arguments of inferiority espoused in Sandoval and Oliphant – should be cast aside.  There is simply no evidence that tribal courts and tribal judges are unable to be fair and just.  To the contrary, numerous studies have proven otherwise.  See e.g. Bethany Berger, Justice and the Outsider: Jurisdiction Over Nonmembers in Tribal Legal Systems, 37 Ariz. St. L.J. 1047 (2005).  For the Senators to assert otherwise is simply irresponsible.  As to Congress’ odd attempt to “protect” its citizens from non-traditional forums, if that duty exists at all, as I’ve said before:  If these citizens don’t trust the ability of tribal courts to be fair and just, then they shouldn’t commit assault or rape on Indian Reservations.

One can only hope that the Grassley-Hutchinson amendment does not make it into the final version of the bill.  Anything less than the limited provisions of the VAWA addressing violence against Indian women, as it is currently drafted, would be an epic failure.  As it is, women are being attacked on an unimaginable scale.  And every study to address the issue has concluded that “[j]urisdictional issues present the main barrier to prosecution” of those offenders and play the largest role in creating the violence against women statistics in Indian country.  Marie Quasius, Native American Rape Victims: Desperately Seeking an Oliphant Fix, 93 Minn. L. Rev. 1902, 1904 (2009).  Only local tribal justice systems are capable of understanding and being accountable to victims of violence and their communities.  For the Senate to ignore this jurisdictional conundrum is a reckless and clear violation of the federal trust responsibility.

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.

Tribal Regulation Immunizes Certain Tobacco Sales from Federal-State Interference

Cigarettes sold by a tribally licensed retailer and pursuant to a state-tribe cigarette agreement are not contraband for purposes of the federal Contraband Cigarette Trafficking Act (CCTA) – even if they are contraband under state law. United States v. Wilbur, 10-30185, 2012 WL 1139078 (9th Cir. Apr. 6, 2012). The Ninth Circuit ruled last week in Wilbur that even if cigarettes are transported in violation of state law, the CCTA only makes cigarettes “contraband” in this context if they “bear no evidence of the payment of applicable State or local cigarette taxes in the State or locality where such cigarettes are found.” 18 U.S.C. § 2341(2). The cigarettes at issue during one period of the Wilbur case were unstamped. But the defendants qualified as an Indian retailer under Washington state law, came partially within the constraints of a tribal tobacco tax compact, and therefore were not subject to state taxes – even though they were allegedly illegal under state cigarette transportation laws and were out of compliance with some tribal regulations.

At its core, for the period in which convictions were overturned, the decision implicitly recognized the legitimacy of tribal tobacco regulation. This could, by analogy or otherwise, undercut the interpretation of the PACT Act by federal agencies that suggests tribal tobacco entities must be licensed by the state to be considered “lawfully operating” under that federal law.

The Wilbur defendants’ convictions were upheld for other periods of the alleged conspiracy. And of more concern is the appearance of state officers acting in federal clothing. As the opinion observed, “a Lieutenant with the Washington State Liquor Control Board who was deputized as a Special Deputy U.S. Marshall, led the search” of the defendants’ retail facility. Although tribal law enforcement also participated in the raids, it is nonetheless noteworthy that reliance by federal statute on state law predicates is problematic in the face of “the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220 (1959).

The apparent ability for state officers to don federal clothing and enforce the state-federal hybrid criminal frameworks on reservations is an even more profound threat to that right. As explicitly contemplated by the Tribal Law and Order Act, if federally deputized non-federal officers are enforcing laws on the Reservation, it should be federally deputized tribal officers doing so. This concern is of course nothing new, as Indian Country braces for and resists the STOP Act, which would essentially import state and big-tobacco interests into Reservation economies under color of federal law. Wolves in sheep’s clothing; Trojan horse; pick your cliché.

Besides the clarity provided by Wilbur, and its limitation on the reach of the CCTA, in the end, a state was still able to enforce its laws on the Reservation, against Reservation Indians.

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.

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.

Seattle Tribal Lawyer Anthony Broadman Publishes Local Taxation in Indian Country Article

Anthony Broadman has published a paper, "Know Your Enemy: Local Taxation and Tax Agreements in Indian Country," has been published in the inaugural edition of Seattle University's American Indian Law Journal.

Intergovernmental disputes between tribes and their neighbors have educated states about tribal sovereignty. What many state governments have learned, through litigation, political battle, and intergovernmental dispute, is that even when states have “won” tax disputes, they have lost. This dependably pyrrhic result has driven rational state actors—state taxing authorities acting consistently with their own best fiscal interests—to pursue negotiated agreements. Today, state-tribal tax compacts, while often controversial, are commonplace.

Counties and cities, on the other hand, with some admirable exceptions, have yet to learn, or heed, lessons from inter-local tax disputes. As it stands, tribes must be prepared for future battles over local taxation in Indian Country, particularly in regard to real or personal property owned by tribes. But as counties and municipal governments slowly learn the lessons already learned by the states, tribes should also be ready to negotiate intergovernmental solutions to inter-local tax disputes.

Anthony Broadman is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  His practice focuses on company-critical business litigation and representing tribal governments, especially in federal, state and local tax controversy. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or or via galandabroadman.com.

Gabe Galanda to Stump on Federal Indian Consultation at the Silver State Mining & Tribal Forum

Gabe Galanda will stump on the federal Indian consultation right at the 2012 Silver State Mining & Tribal Forum, via Skype to Winnemucca, Nevada on April 17, 2012. His remarks will focus on customary international law requiring consultation with and informed consent by indigenous peoples, as embodied in the United Nations Declaration on the Rights of Indigenous Peoples. In late 2010, Gabe published a three-part series in Indian Country Today titled, "The Federal Indian Consultation Right: No Paper Tiger." He has since been cited as a leading commentator on the topic of federal Indian consultation, in papers like "Tribal Consultation in the 21st Century" by Professors Colette Routel and Jeffrey Holth; and in the latest edition of Steven Pevar's book, "The Rights of Indians and Tribes."

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 tribal governments and Indians citizens defend against tribal and indigenous rights violations by federal, state and local government actors. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.