The Indian Tax Double Standard

Ryan Dreveskracht points out the double standard of sales tax in Washington State: the Department of Revenue turns a blind eye to the sales taxes it loses when Washington citizens drive to Oregon to make large consumer purchases. Meanwhile, the state vigorously enforces its tobacco sin taxes on Washington citizens who drive to Indian reservations to purchase cigarettes. Similarly, Idaho Governor Butch Otter infamously wrote a love letter to Washington and Oregon businesses, seeking to woo them to Idaho by promising lower corporate income taxes. Washington responded in kind: ("States trying to attract each others' businesses"). Still, nobody accused any Northwest state government of "marketing a tax advantage" or "creating an unlevel playing field." Meanwhile, tribal governments that leverage their favorable sovereign tax status are perennially accused of doing such things by their neighbor governments.

In addition, state and local governments can issue tax-exempt bonds for economic development projects like hotels, convention centers, golf courses and recreation facilities to promote their economic development. Meanwhile, the IRS has determined that like-kind hotels, convention centers, golf courses and recreation facilities on Indian reservations do not serve "essential governmental functions." As such, tribal governments cannot avail themselves of cheaper capital.

On June 15, the Internal Revenue Service Advisory Committee on Tax Exempt and Government Entities issues a report, which in part concluded that: "the [tribal] essential governmental function standard should be eliminated. Achieving at least parity with state and local governments in terms of access to low cost capital for more wide-ranging economic development projects has been an unmet goal of the tribes for decades." Agreed.

The Indian tax double standard. Will it ever end? Will there ever be parity? I'm not optimistic.

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.

Wall Street Journal Exposes State-Big Tobacco Scheme to Snuff Out Tribal Tobacco Economies

It has been no secret that the states and Big Tobacco are in cahoots to destroy tribal tobacco economies (see the 1998 MSA), but the lengths to which they would go to do so, was left to speculation. Now, the Wall Street Journal has blown the cover off dealings between the States and Big Tobacco, which, as with the original MSA negotiations, concern tribal tobacco economics but do not involve any tribal governments. Nor can there be any doubt whatsoever that state governments are actively looking to balance their hundred-plus-million-dollar budget deficit on the backs of Indians.

The MSA is a convoluted mess, as the states would agree, but the upshot of the unholy alliance between them and Big Tobacco relatively straightforward: States pledge MSA monies to back bonds they issue to fund state government, especially while state tax revenues are at an all time low. In exchange for MSA monies paid by Big Tobacco, the states must protect Big Tobacco's multi-billion dollar market share, including in Indian Country.

Big Tobacco complains that tribal tobacco manufacturers and retailers are eating into that market share. So Big Tobacco threaten the states.

Unless the states more rigorously enforce state tobacco tax laws in Indian Country, Big Tobacco will take the MSA monies back, through push or shove, which could cause the state MSA-backed bonds to default. The States literally cannot afford a default so they are forced to cut a deal with Big Tobacco, promising to do more to protect Philip Morris and Friends' market share, with the tribal tobacco economy being the bargaining chip that both parties are all to happy to cede.

If, or when, the deal currently being negotiated between the states and Big Tobacco is consummated, it could result in the biggest heist of tax value derived from Indian Country by state government and non-Indians, since the Dawes Act. And the model state tobacco tax laws contemplated by the agreement, when, not if, passed by state legislatures, would cause massive, further incursion of state civil regulatory authority into Indian Country.

Indian Country -- meaning not just tribal governments with tobacco economies -- unite! And take action to defend tribal sovereignty as we now know it.

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.

Trahant Reports Quotes from Galanda Broadman's Blog on Indian Tax

Gabe Galanda's blogs on Indan taxation are quoted in Trahant Reports, as featured on indianz.com: It's time for tribes and states to work together.

Seattle attorney Gabriel Galanda puts it this way, on the social network, LinkedIn: “Tax-starved states and counties will continue to attempt to extract value from reservation economic development projects, through taxation or otherwise. Tribes must be vigilant in their defense against illegal inter-local cash grabs.”

On Galanda’s blog he writes that Washington state Republicans are proposing to “close” tribal tax loopholes worth $110 million. His message is clear. “Make no mistake about it,” he writes, “the state tax man cometh to Indian Country. Be prepared.”

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.

Has California Consulted With Tribes Regarding MPLA Closures?

California tribal members gathered to protest proposed MLPA closures on June 18, and they will raise their concerns at the California Fish & Game Commission (CFGC) meeting in Stockton on June 29-30. But has the CFGC consulted with California tribes regarding proposed restrictions on coastal gathering proposed under the Marine Life Protection Act (MLPA) Initiative? Make no mistake, even though California tribes' treaties weren't ratified, the state of California still must consult with those tribes regarding state laws and policies that will detrimentally impact the tribal religious, cultural and subsistence practices of gathering food from the sea.

Government-to-government consultation is a fundamental aspect and necessary component of tribal sovereignty that has never been extinguished – explicitly or implicitly – by the federal government. California tribes should demand consultation from CFGC regarding the proposed coastal gathering restrictions, to the extent the state has not yet provided that opportunity to affected tribes.

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 Testifies At Centennial Accord

Gabe Galanda was privileged to testify before the twenty-nine Tribes in Washington State, and Governor Christine Gregoire and her cabinet, at the 2011 Centennial Accord on June 9. Gabe spoke of the progress the Tribes and State made in restoring the religious rights of Native inmates incarcerated in the State Department of Corrections, since those rights were infringed in 2010. 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 Featured in American Indian Report

Gabe Galanda is featured in this American Indian Report article: United Indians to Provide Religious Services to Native Inmates in Washington Prisons.

“It’s extremely important for Indian Country to work collaboratively with the DOC to ensure Native inmates can freely exercise tribal religion, particularly as a means of rehabilitation and preparing them for their return to tribal communities and mainstream society,” said United Indians Vice Chairman Gabriel Galanda.

United Indians will begin by conducting a needs assessment to determine what Native American inmates need in terms of Indian religion and spirituality. It will also administer the contracts and training of Native religious service providers, including the DOC’s Native chaplains, which, Galanda said, will bring some authenticity to the program. The types of religious services that it will provide include sweat lodge and change of seasons ceremonies, summer pow wows, drumming circles and one-on-one spiritual outreach to inmates.

Before this partnership, Native inmates in Washington prisons were being deprived of their religious rights, Galanda said. The number of sweat lodge ceremonies that they could participate in had been reduced; tobacco and other sacred herbs and medicines were banned as were frybread, salmon and other traditional foods used in spiritual ceremonies.

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.

Federal Indian Consultation Right Extends to Tribal Members

Indian Country Today Media Network reports that Interior Sets Cobell Land Consolidation Consultations. This is a critical recognition by the United States that the federal Indian consultation right, meaning the substantive duty of the United States to consult with Indians about matters of tribal implication, extends to tribal members. That is especially true in regard to individual Indian-owned lands and other trust assets.

Pursuant to the Indian Land consolidation Act, and the Department Interior's Indian Land Consolidation Plan enacted pursuant to that statute: “Interior may acquire land from individual Indian owners to consolidate fractional ownership interests and thereby ‘lessen the number of owners.’” Cobell v. Norton, 225 F.R.D. 41, 44 (D.D.C. 2004). Sales of allotted land interests are governed by provisions set out in 25 C.F.R. § 152. “The common feature of all these kinds of Part 152 sales is that they require communication between individual Indian trust-land owners and agents of Interior.” Cobell, 225 F.R.D. at 45.

The fiduciary duty to individual Indians includes consultation, as “[c]onsultations . . . can roughly be understood as communication by Indian beneficiaries of their desires to the federal trustees who make ultimate determinations about what happens with the lands Indians occupy.” Derek C. Haskew, Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or Another Badge of Shame?, 24 AM. IND. L. REV. 21, 31 (2000). This duty is triggered when an agency decision impacts the “value, use, or enjoyment” of Indian trust assets. U.S. DEP’T OF THE INTERIOR, PROTECTION OF INDIAN TRUST RESOURCES PROCEDURES MANUAL 13 (1996).

The federal Indian consultation right vis-a-vis tribal governments is alive and well, especially at common law. The right vis-a-vis tribal members is in only its nascent stage, legally speaking.

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.

Washington State Corrections & United Indians Join Forces to Improve Tribal Religious Programs for Native Offenders

Gabe Galanda is featured in this joint press release from the Washington State Department of Corrections and United Indians of All Tribes Foundation.

The mission of United Indians is to foster and sustain a strong sense of identity, tradition, and well-being among the Indian people in the Puget Sound area. United Indians Vice Chairman Gabriel Galanda said the group is very excited about the opportunity to work with the DOC.

“It’s extremely important for Indian Country to work collaboratively with the DOC to ensure Native inmates can freely exercise tribal religion, particularly as a means of rehabilitation and preparing them for their return to tribal communities and mainstream society,” said Galanda. “United Indians’ oversight of tribal religious programming is a spectacular exercise of Indian self-determination, in a space where that is not often allowed—state prisons.”

Vail and Galanda will discuss this partnership in more detail at the Centennial Accord June 9. This Accord was established in 1989 between the federally recognized Indian tribes of Washington and the State of Washington, through its governor, to better achieve mutual goals and improve government-to-government relationships.

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 Co-Chair 7th Annual Re-Emerging Northwest Tribal Economies

Gabe Galanda will be co-chairing the 7th Annual Re-Emerging Northwest Tribal Economies conference at Tulalip Casino Resort on August 4-5, 2011.

Indian gaming recently experienced its first decline in annual revenues due to the recession. The inevitable legalization of Internet gaming will further challenge Indian gaming's viability. Federal contract preferences for tribal small businesses are under siege by Congress. Meanwhile, state governments refuse to treat tribes like governments, as they seek to extract value from the reservation by taxing tribes in order to balance woeful state budgets.

Still, with various federally-backed economic and tax incentives, there has never been a better time for investment and development in Indian Country. With tribes needing to diversify Indian economies to minimize tribal reliance on Indian gaming, Indian Country is looks to bring new industries to the reservation and also to joint venture with businesses off the reservation and abroad. In addition, the tribal private sector grows by the day, as Indian small and family-owned businesses take flight and permeate the tribal public sector and Corporate America.

Gabe will also be presenting on "Tribal Joint Venture Partnerships: The Latest Legal and Business Developments Shaping How Tribal-Private Partnerships Might be Structured to Maximize Sovereign Benefits for Both Parties."

Anthony Broadman will speak on "Indian Tax Update: What is New in the Arena of Indian Country Taxation?"

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.

Montana Supreme Court Affirms Tribal Authority Over Probate of Reservation Fee Lands

The Great Falls Tribune reports: "Supreme Court ruling strengthens sovereignty in Indian Country."

The Montana Supreme Court has overturned a nearly 40-year-old precedent that has long been used by lower courts to determine jurisdiction in cases that stem from within tribal reservation borders.

In a 36-page ruling issued last month, the high court ruled unanimously that tribal courts have exclusive jurisdiction over the probate of 'fee lands'owned by tribal members within the boundaries of reservations.

Thankfully, the U.S. Supreme Court's decision in Plains Commerce did not dictate a different result, namely state court authority over the probate of tribal member-owned fee lands within reservation boundaries.

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.