Washington Supremes: Attack On Tribal Gas Stations Can Continue

The Washington State Supreme Court held 5-4 today that AUTO’s lawsuit attacking Tribe-State Fuel Tax Agreements can move forward. The majority found that Tribes are not indispensable parties to the lawsuit. Plainly, this means that the suit can proceed and that for now the Washington Automotive United Trades Organization (AUTO) can continue to attack Tribal governments through a lawsuit against the state.

At the core of its lawsuit, AUTO argues that the state, Governor Christine Gregoire, and the state Department of Licensing are violating the Washington Constitution by entering into the fuel compacts with Tribes and that the legislative system surrounding the compacts itself is illegal.

The decision, AUTO I, was decided on procedural grounds. But like most procedural decisions employing balancing tests, judges can rationalize reversal or affirmation. As the majority itself pointed out: “As with all equitable standards, the proper application of CR 19(b) involves a careful exercise of discretion and defies mechanical application.” Which means that judges can justify whatever result they desire.

But the anti-tribal/state majority did make some helpful intermediate findings: First, the tribes are necessary parties. As a matter of civil procedure, parties are necessary when they claim a protected interest in a lawsuit. The majority held that the tribes’ interests in the fuel tax regime are both profound and not adequately represented by the state. If AUTO wins, tribes lose big.

Second, the majority soundly endorsed the continuing sovereign immunity of tribes. Justice Stephens offered the following nuanced discussion, without citation, of tribes’ ability to manage their own immunity from suit:

In fact, an Indian tribe may cabin the extent of its waiver. The greater power to remain utterly immune from suit encompasses the lesser power to consent to suit only on a particular claim or in a particular forum or by a particular party. Sovereign immunity is not an all or nothing proposition, and a narrow waiver does not destroy immunity for all purposes.

So far so good. But on indispensability itself, the Court showed its colors, achieving the result it wanted at the cost of bad legal analysis. Indispensability (after necessity and inability to join have been decided) asks whether the case can proceed “in equity and good conscience” without the absent party in light of four factors.

Analyzing the first factor, prejudice to the tribes, the Court held that the tribes would be severely prejudiced. As the majority noted, “[t]his first factor strongly favors dismissal.” Usually, with immune parties, this is the end of the discussion. This has certainly been the historic approach of Washington Courts.

The second factor is whether the Court can fashion relief to reduce such prejudice. The Court recognized that because AUTO’s solution – suing tribal officials who signed the fuel tax agreements – was as bad as the prejudice, “the second CR 19(b) factor favors dismissal.” The Court did not even really apply the third factor (adequacy of judgment without the tribes) but found that it counseled for dismissal anyway. If you’re keeping score, that’s three factors for dismissal, and zero factors against it.

Relying then completely on the fourth factor, the absence of remedy upon dismissal, the Court held that because “there appears to be no other judicial forum in which plaintiffs can seek relief, the plaintiff lacks an adequate remedy in the event of dismissal,” the case could not be dismissed.

In the end, even though the Court has dismissed similar suits over somewhat similar agreements on indispensability grounds, the state, and indirectly, the tribes, were before the wrong justices. The Court naively noted that, “Sovereign immunity is meant to be raised as a shield by the tribe, not wielded as a sword by the State.” But as is clear in this case, if courts force cases forward with indispensible parties, it’s a shield that immune parties can’t even employ without waiving.

Here is the updated rough chart of Washington State Supreme Court voting tendencies:

In Wright and AUTO, which are the most analogous cases, only justices Madsen, Owens, and Fairhurst have come down on Tribal side of cases (justices González and Stephens were not on the Court for Wright.) The other end of the Court has congealed around both justices Johnson and Justice Chambers, and promises to be consistently resistant to protecting tribal interests.

We’re calling it AUTO Part One because Part Two will come, whether through review to the U.S. Supreme Court or through further litigation in the Washington State Courts. Either way, AUTO promises to carry even more profound risks to the Tribal-State fuel tax regime, and indirectly to the sovereignty of Washington tribes themselves.

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.

State-Tribal Consultation Right Crystallizing

Last week, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, urged “local and state authorities in South Dakota” to address concerns expressed by the Sioux Nations regarding the impending private land sale of Pe’Sla, a sacred site of the Lakota, Dakota and Nakota Peoples, in the Black Hills. While the federal Indian consultation right is now entrenched in federal law, the Special Rapporteur’s pronouncement of a state-tribal consultation right is profound. 

The Special Rapporteur’s proclamation follows a Resolution passed by the National Congress of American Indians in March 2011, whereby NCAI resolved that much like the United States’ consultation obligations to tribes, “states and local governments [must] meaningfully consult with tribal governments, on a government-to-government basis, regarding any matter of tribal implication, in order to allow any affected tribal government to express its views and assert its rights in advance of any non-tribal governmental action or decision-making.”

Indeed, much like the international norm of indigenous consultation and the federal Indian consultation right have each crystallized through non-tribal governmental actions and proclamations, a state-tribal consultation right is forming.

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 is currently writing a piece for Indian Country Today, tentatively titled, "Developing and Enforcing the State-Tribal Consultation Right." He can be reached at 206.691.3631 or gabe@galandabroadman.com.

Training Seminar for Tribal and Federal Law Enforcement: A Good First Step

Early last week, the U.S. Department of Justice and the Department of the Interior launched a new training seminar for tribal and federal law enforcement on investigating and prosecuting sexual assault cases on tribal lands.

Topics included law enforcement response, children as victims and witnesses, forensic examinations with adult victims and, most importantly, developing a coordinated and consultative community response to sexual assault.  Such consultation is mandated by various sections of the Tribal Law and Order Act of 2010, Pub. L. No. 111-211, which instructs that that federal law enforcement consult, cooperate, and coordinate with tribal law enforcement.  Some federal agents on the ground in Indian Country, however, have chosen to ignore this mandate.  Hopefully, the training seminar will begin to facilitate the fulfillment of the TLOA.  More than 75 persons, including representative from 23 tribal governments, participated in the three-day training course.

Ryan Dreveskracht's "Revictimizing Native Women for Political Purposes" Goes Viral

Ryan Dreveskracht's commentary, "Revictimizing Native Women for Political Purposes," regarding the increasingly partisan and misogynist VAWA reauthorization debate, was originally published on Crosscut. His op-ed has since been reposted by Turtle Talk, Indian Country Today Media Network, and pechanga.net, and has in turn gone viral via tribal social media.

As originally passed by the U.S. Senate, the Violence Against Women Act reauthorization legislation would allow tribes to exercise limited criminal jurisdiction over certain non-Indians who violate Native American women on Indian reservations. Tribes would be required to provide all rights accorded to defendants in state and federal court, and federal courts would have authority to review tribal court decisions that result in incarceration. The legislation would not raise the one-year maximum sentence that tribal courts can impose. The GOP-controlled House, however, omitted the protections for Indian women in its version of the bill.

Among those voting to omit the tribal protections were vice presidential candidate Paul Ryan, U.S. Senate candidate Akin, and House Republican King. In an interview originally broadcast on Sunday, Akin suggested that an abortion would be unnecessary in the instance of a “legitimate rape” because apparently only non-legitimate rape leads to pregnancy — whatever that means. Chiming in agreement, fellow House Rep. King said that he’s never heard of a girl getting pregnant from statutory rape or incest. While Akin and King quickly recanted, they cannot as simply withdraw their votes against the Senate’s proposed protections for abused Native women.

Also Monday, the News Tribune (editorial, “Protect Indian women without diluting Bill of Rights”) accused tribal governments of having “an agenda of their own: They see the domestic violence issue as a way to assert and reclaim broader sovereign powers.” The editorial is wrong. Indian country sees the the Violence Against Women Act (VAWA) reauthorization as a way to protect Indian women from being violently assaulted.

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.

Indian Country Today Publishes Anthony Broadman's "Roundup" of Recent 9th Circuit Tribal Cases

Anthony Broadman has published a roundup of court cases relevant to Indian country that wer recently decided in the Ninth Circuit.

Tribal Exhaustion Compelled, but Montana Exception Further Questioned: "[I}n Rincon Mushroom Corp. v. Mazzetti, No. 10-56521, 2012 WL 2928605 (9th Cir. July 19, 2012), a non-Indian owner of a fee simple parcel of land located on the Rincon Band of Luiseno Mission Indians’ reservation is challenging the tribe’s regulatory and adjudicatory authority to protect the reservation natural environment...."

Not All Unstamped Cigarettes are Contraband: "In United States v. Wilbur, 674 F.3d 1160 (9th Cir. 2012), the Ninth Circuit held that 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...."

Save the Peaks Attorney Personally Sanctioned: "Last February, the Ninth Circuit held, in Save the Peaks Coalition v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012), that the U.S. Forest Service had complied with the requisite environmental regulations in issuing a special use permit...."

Alaskan Native Fishing Dispute Hinges On Historic “Exclusive Use”: "In a tense en banc decision, the Ninth Circuit held last month that although Chugach people continuously used and occupied part of the Gulf of Alaska, they do not now have aboriginal rights to hunt and fish the area because their historic use was not 'exclusive'..."

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

Ryan Dreveskracht's Paper on the VAWA Reauthorization and Oliphant Fix Accepted for Law Review Publication

Ryan Dreveskracht's paper, “House Republicans Add Insult to Native Womens’ Injury,” has been accepted for publication in the University of Miami Race and Social Justice Law Review. Turtle Talk has published his manuscript.

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.

Turtle Talk Publishes Ryan Dreveskracht's HEARTH Act "Dissent"

Turtle Talk, the leading Indian law blog, has posted Ryan Dreveskracht's blog on the HEARTH Act, "Are Hopes for the HEARTH Act Too High?"

Of course, the HEARTH Act authorizes the Secretary to provide a tribe, upon the tribe’s request, technical assistance in developing a regulatory environmental review process. But this takes time and money. And the Secretary, given all of the BIA’s other demands, is perennially short on time when it comes to launching new initiatives such as this one. Further, Congress has shown time and time again that it is willing to pass these laws, but not to fund them; Congress should not be expected to authorize one red cent to support the HEARTH Act’s implementation.

Time will tell whether the HEARTH Act proves to be any success at all. Until then, the “Expedite” part of the HEARTH Act’s title seems a bit too optimistic.

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.

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.

Tribe v. Tribe Test For Bankruptcy Code

The oft-debated question whether Tribal casinos are eligible for bankruptcy protection may be a little clearer next month, thanks to a recent case in the U.S. Bankruptcy Court for the Southern District of California. But what makes the case intriguing is the creditor challenging tribal entity eligibility for bankruptcy is another tribe. Bankruptcy watchers were sure there would be a challenge to Santa Ysabel Resort and Casino’s bankruptcy petition. But in a strange turn, the biggest creditor of the Casino’s owner – Iipay Nation of Santa Ysabel – is the Yavapai-Apache Nation. The papers and petition are available via Turtle Talk.

Note to future tribal casino bankruptcy petitioners: be prepared to defend your eligibility under the Code, especially if your largest creditor is an Indian Tribe. Lawyers for the Yavapai-Apache Nation tuned in quickly to the problems with Santa Ysabel’s petition:

Sections 109 and 101 of the Bankruptcy Code govern who may be a bankruptcy debtor. Specifically, § 109(d) limits eligibility for chapter 11 to “a person that may be a debtor under chapter 7 of this title” and a number of other entities not relevant here.

A necessary requirement for chapter 7 eligibility is that an entity fall within the definition of “a person.” 11 U.S.C. § 109(b). Section 101(41) provides that “[t]he term ‘person’ includes individual, partnership, and corporation, but does not include governmental unit.”

Because the Iipay Nation is a “governmental unit,” it cannot be a bankruptcy debtor.

On its voluntary petition the Debtor is listed as "Santa Ysabel Resort and Casino" and for type "Corporation (includes LLC and LLP )" is checked. This is odd since in the Omnibus Declaration the Casino’s GM states "The Debtor is an unincorporated company.” This might be important since, conceivably, although Chapter 11 won't apply to governmental units, including tribes, it could apply to a formally incorporated tribal business.

Many forecasted that tribal entity bankruptcy eligibility would be tested at the bottom of the downturn. But as tribal bankruptcy petitions continue to be filed – the Southeast Alaska Native village corporation Klukwan Inc. filed for bankruptcy this week – perhaps we are seeing tribal debtors testing the waters now, as they realize there is no relief on the horizon and no hope for workouts.

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

Bar Bulletin: Supreme Court Justice Steve Gonzalez Honors Gabe Galanda

Washington State Supreme Court Justice Steve Gonzalez honors the work of Gabe Galanda in the latest King County Bar Association Bar Bulletin. The column, titled "Native Son," is available online here (abbreviated) and in reprint here (full).

In the courtroom, Gabe’s public exploits would be impressive for any lawyer, let alone a 36-year-old. In 2006, he helped spearhead litigation and subsequent settlement among the Lower Elwha Klallam Tribe, State of Washington and City and Port of Port Angeles regarding the Tse-whit-zen Village and ancestral burial ground. He has been at the forefront of state-tribal taxation issues in Washington. Whereas many firms advertise themselves as bet-the-company litigators, Gabe has developed into a bet-the-tribe lawyer. For example, through emergency federal court motion practice, Gabe recently helped a tribe halt the USDA’s attempts to barge solid waste from Hawaii to aboriginal lands in central Washington, where the tribe fishes, hunts and gathers roots and berries to this day, under an 1855 treaty with the United States. His record is clear on at least one thing: he pays little heed to the strictures of formal power structures. When Gabe believes tribal sovereignty or culture is threatened, he will fight – no matter the opponent.