Judicial Warning to Tribes to Avoid State Incorporation

Before any tribal government forms an enterprise under state law or seeks to do business beyond Indian Country, it should consider this week's indictment of tribal sovereign immunity by a Tenth Circuit Court of Appeals Judge in Somerlott v. Cherokee Nation Distributors.

CND, LLC wants sovereign immunity. But CND, LLC is in the business of manipulating spines for profit. It serves mostly non-Indians and operates off reservation. It was formed under Oklahoma’s limited liability statutes. . . .

[S]overeign immunity has never extended to a for-profit business owned by one sovereign but formed under the laws of a second sovereign when the laws of the incorporating second sovereign expressly allow the business to be sued. And it doesn’t matter whether the sovereign owning the business is the federal government, a foreign sovereign, state — or tribe. . . .

Neither can we doubt that the Nation lacked for choices when it came to organizing CND — or that good reasons exist for the choice it made. The Nation could have chosen to operate the chiropractic clinic itself and enjoy immunity for its operations. . . .

The moral of this story: Tribes should avoid state incorporation of their enterprises whenever possible. Instead, tribes should charter their businesses under tribal law, or perhaps Section 17 of the IRA (yet heeding caution about sue-and-be-sued-clause immunity waiver as to the latter). I recognize that certain tribal economic development efforts require an entity formed under state law but that should be the exception to the rule.

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. Gabe can be reached at 206.691.3631 or gabe@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.

DOJ Supports Indian Prisoners' Religious Rights

In an landmark statement of federal support for Indian prisoners' rights to freely practice tribal religion, the Department of Justice filed a Statement of Interest with a South Dakota federal district court, supporting the Native prisoners' use of traditional tobacco during worship. Gabe Galanda recently published a paper, "Protecting Indian Prisoners' Religious Freedoms," which cited various federal legal authorities on the topic:

To be clear, Native inmates “do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish (1979). Rather, they enjoy free exercise rights protected by the federal First Amendment. Pell v. Procunier (1974). Despite a U.S. Supreme Court decision in 1987 that supplanted the longstanding strict scrutiny basis for review with a “legitimate penological interest”-test, Turner v. Safley (1987), restrictions on Native prisoner religious practices such as sweat lodge ceremonies have been held to unlawfully infringe upon such a prisoner’s right to “free exercise” of religion. See e.g. Thomas v. Gunter (8th Cir. 1994). Further, some state constitutions, like Washington State’s, afford more protection for religious freedoms than the federal First Amendment. First Covenant Church v. City of Seattle (1992).

In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), to restore the strict scrutiny test for prisoner religious freedom claims. Under RLUIPA, a prison cannot substantially burden an inmate’s religious exercise unless the imposition of the burden on that person “is in furtherance of a compelling governmental interest” and is the “least restrictive means” of furthering that interest. Ahmad v. Furlong (10th Cir. 2006). Accordingly, federal courts have affirmed the rights of Native prisoners to use tobacco for religious ceremonies, Native American Council of Tribes v. Weber (D.S.D. 2011), and to participate in talking circles and pipe and drum ceremonies, Meyer v. Teslik (W.D. Wis. 2006).

As an overlay, the American Indian Religious Freedom Act (AIRFA) of 1978 announced the United States policy to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions.” Although AIRFA does not create a cause of action,” Lyng v. Northwest Indian Cemetery Protection Assoc. (1988), the law has been cited as persuasive authority in a number of cases concerning the religious rights of America’s first peoples—including those who live behind bars.

Kudos to the DOJ and the South Dakota U.S. Attorney's Office for standing in support of Indian prisoners' religious rights and traditional tobacco use -- and the free exercise of Indian religion at large.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda to Address UN-Geneva Re: American Indian Treaties and Consultation

Gabe Galanda will visit Geneva, Switzerland on July 16 and 17, 2012, to address the United Nations Office of the High Commissioner for Human Rights, during a forum titled, “Strengthening Partnership Between Indigenous Peoples and States: Treaties, Agreements and Other Constructive Arrangements." Gabe, an enrolled member of the Round Valley Indian Tribes of California, will speak at the UN Palais des Nations on July 17 during a session titled, “Highlights of country-level experiences concerning treaties, agreements and other constructive arrangements.”

He will speak along with indigenous leaders from South Africa, Costa Rica, Bangladesh, New Caledonia, Canada, Mexico, Columbia and Kenya, regarding the processes, principles and other essential elements of the negotiation and elaboration of new agreements or other constructive arrangements as well as the effective recognition of historical treaties.

“The invitation to join the leaders of indigenous nations and nation-states and address the U.N. human rights tribunal in Geneva is one of the highest honors I have ever received,” said Galanda. “I look forward to contributing to international discourse concerning the rights of indigenous peoples vis-à-vis their sister sovereigns, and to helping advance the American Indian consultation right towards one of informed consent.”

Gabe’s remarks and paper are titled, “American Indian Treaties: The Consultation Mandate." In particular, he will address domestic federal recognition and breach of Indian treaties, and modern practices of federal-tribal government-to-government consultation, particularly in relation to the U.N. Declaration of the Rights of Indigenous Peoples (DRIP) that President Obama endorsed on December 16, 2010. Indian treaties are to be recognized as the Supreme Law of the Land according to Article VI of the U.S. Constitution.

Gabe has been critical of the United States government for its breach of the U.N. DRIP (“in action, the departments, agencies, and officials within the Obama Administration do not actually live up to the words contained in the Declaration. To the contrary, federal actions too frequently contradict the promises made by the United States to American Indian indigenous people in the Declaration”); and its violation of fundamental consultation tenets between sovereigns (“other federal agencies completely missed the memo on tribal consultation – literally President Obama’s Tribal Consultation Memorandum – and, in specific instances, have failed to meaningfully consult with tribal governments concerning federal activity”). He maintains that a “treaty consultation obligation arises, in part at least, from the implicit duty to consult that is intrinsic in any bilateral agreement between nations.”

Gabe is a Partner with Galanda Broadman, PLLC, an American Indian-owned law firm in Seattle dedicated to advancing tribal legal rights and Indian business interests. His practice focuses on complex, multi-party litigation and crisis management, representing tribal governments and businesses and Indian citizens. Gabe has prosecuted various actions against the United States and for breach of Indian treaties and federal Indian consultation laws.

He has been selected to The Best Lawyers in America® from 2007 to 2012, and was named as one of the best lawyers in Washington State by Puget Sound Business Journal in 2011. Gabe was named to the Puget Sound Business Journal’s “40 Under 40” list, as well as to the National Center for American Indian Enterprise Development’s “Native American 40 Under 40” list in recognition of his status as an emerging leader in the legal industry, in 2009. Washington Law & Politics/Super Lawyers magazine named Gabe a “Rising Star” for ten of the last twelve years, most recently this year, and Washington Law & Politics named him one of Washington’s four Leading Edge Litigators in 2003. He was awarded the Washington State Bar Association Young Lawyers Division’s Outstanding Young Lawyer Award, and the Northwest Indian Bar Association’s Native Justice Award, in 2004.

Gabe was born and raised in Port Angeles, Washington. At Peninsula College, he received his A.A. from Peninsula College in 1995, and served as Associate Student Body President there in 1994-95. Gabe received his B.A. in English Literature from Western Washington University in 1997, and his J.D. from the James E. Rogers College of Law at the University of Arizona in Tucson, in 2000. At Arizona, he served as President of the Native American Law Students Association in 1998-99 and Note Editor for the Journal of International and Comparative Law in 1999-2000.

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.

Trending: Gross and Willful Tribal Vendor Requests for Indemnity

For years, lenders have insisted that tribes indemnify them in loan documents for the bank's own negligence and misconduct concerning the deal. Tribes have too frequently accepted the bank-demanded indemnity language, simply in order to get the cash they need to run tribal governments and businesses. More specifically, some commercial lenders, and an increasing number of vendors and service providers to tribes, are insisting that tribes indemnify them from the banks/vendor/providers' own negligence, carving out from the indemnity clauses only those non-Indian businesses' "gross negligence" and "willful misconduct." And the the banks/vendor/providers treat the issue as non-negotiable; as "take it or leave it"/"our way or the highway."

Tribes should simply not be indemnifying non-Indian businesses from basic negligence. Period. The banks/vendor/providers' simple negligence should be carved out of any indemnity language that the tribe agrees to in favor of those non-Indian businesses.

The banks/vendor/providers' position, i.e., assume liability for our silly behavior or we won't loan you cash or provide you services, is preposterous -- in fact gross (disgusting) and willfully disrespectful to tribal governments and enterprises. Hopefully tribes who see over-reaching indemnity language in proposed loan documents and other commercial agreements, will reject any such language out of hand. If enough tribes do, that language will eventually disappear from commercial agreements in Indian Country.

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 with all varieties of tribal economic development and diversification initiatives. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Tribal Immunity Held Inapplicable to Private Insurers -- Ya Think?

The Oklahoma Supreme Court recently ruled in Waltrip v. Osage Million Dollar Elm Casino that a tribal enterprise's private workers' compensation insurer did not enjoy tribal sovereign immunity and was estopped to deny coverage under a policy for which the carrier accepted premiums computed in part on a tribal employee's earnings. The tribe's insurance company had the audacity to assert sovereign immunity on its own behalf? Really? Although, I'm not sure why I'm surprised that an insurance company (or the low-rate, high-volume, non-tribal defense lawyer the carrier likely unilaterally hired to defend its tribal insured) would stoop so low.

Waltrip states what was otherwise conventional Indian legal thinking, that a private insurer cannot shield themselves from defending or paying on tort claims brought against its tribal insureds as a matter of the insured's sovereign immunity. Previous to Waltrip, the Arizona Supreme Court came the closest to making that point clear, in Smith Plumbing Co., Inc., v. Aetna Casualty & Surety Co.: “Because the Tribe has the power either to insist upon or waive its sovereign immunity, that immunity is considered a personal defense not available to the Tribe’s surety.”

Thankfully the common law now clearly establishes that an insurer cannot duck and run from from a personal injury claim by asserting the sovereign rights of the insured, for the carrier's own economic gain.

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 businesses devise insurance solutions, and defends tribal insureds from serious and catastrophic tort claims. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.