Read all about it. Galanda Broadman is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters.
Tribal-County Payment In Lieu of Taxes Is Good Governance
An Idaho state official has expressed concern about a potential agreement between an Idaho county and neighboring tribal government for tribal payment of monies in lieu of property taxes. The official's concern is old hat. He needs a new hat. As Mark Trahant rightly observes, tribes and counties are better off working together than fighting each other over property taxation. That is especially true because any county effort to enforce property taxes against a tribal government presents a "rights without remedy" dilemma for the county, given the doctrine of tribal sovereign immunity. See Oklahoma Tax Commission v. Citizen Band of Potawatomi Tribe of Oklahoma, 498 U.S. 505, 515 (1991). In other words, property tax controversy with tribes is a zero sum game for county government.
Indeed, the better approach is for neighbor counties and tribal governments to negotiate (or at least consult and attempt to negotiate) some cash or in-kind payment in lieu of taxes to any inter-local property tax dispute. Such an outcome a win win situation.
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.
[Also tagged under "mixed metaphors."]
AUTO v. Washington: An Imminent Threat to Washington Tribes’ Sovereignty
Make no mistake, the lawsuit brought by the Washington Automotive United Trades Organization (AUTO) seeks to eviscerate Washington tribes’ intergovernmental sovereign immunity and expose Tribal governments to suit by third parties based on agreements Tribes have entered into with the state. This month, the Supreme Court of the State of Washington agreed to hear the appeal of AUTO v. Washington, or as AUTO calls it, “AUTO v. Governor Gregoire.” A more accurate title might be AUTO v. Washington Indian Country. AUTO is targeting state-Tribal compacts, presumably because Tribal fuel enterprises are competitors. AUTO argues that the state and Governor are violating the Washington Constitution by entering into the fuel compacts with Tribes and that the legislative system surrounding the compacts itself is illegal. Never mind that Washington’s approach to the tribal fuel tax conundrum is the state’s attempt to comply with binding federal law related to taxation in Indian Country.
The state Supreme Court accepted review of the Gray’s Harbor Superior Court order dismissing AUTO’s case based on the indispensability of several Washington Indian Tribes, who are necessary parties to the case. The procedural concept of indispensability requires a case to be dismissed if there is a party who should be a part of the case but cannot be joined due to, for instance, sovereign immunity. It can be a muddy procedural doctrine, but it’s one that often protects Tribal interests, since those interests should not be adjudicated unless Tribal sovereigns agree on the forum.
What can we expect? There are several reasons for Washington Indian Country (and Indian Country at large) to be concerned. First, the state Supreme Court decided to review the case. That decision itself can probably be accurately viewed as negative for Tribes since the trial court’s decision appears to have been correct under the Washington Civil Rules and cases interpreting them.
Second, the core of the anti-Tribal dissent in Wright v. CTEC, the last significant Washington Supreme Court on tribal sovereign immunity, remains on the Court. The Justices who will likely participate in AUTO and voted in Wright, are split 3-3 (Justices Chambers, C. Johnson, and J. Johnson against tribal interests v. Justices Madsen, Owens and Fairhurst for them). The addition of Justices Stephens, and Wiggins, possibly with Justice Alexander’s replacement, make this one tough to handicap.
Add the Court’s recent frenetic approach in State v. Eriksen to the mix (affirmation of conviction; reconsideration; withdrawal of opinion; affirmation of conviction; reconsideration; withdrawal of opinion; reversal) and things become even more muddled. Although Eriksen was not a sovereign immunity case, the Court was forced -- or chose -- to examine tribal sovereignty relative to the state in the criminal context. The Court was again well split, this time with Justices Owens, C. Johnson, and Chambers finding, correctly, that the Lummi Nation’s inherent authority justified the detention of a dangerously intoxicated non-Indian driver.
More recent arrivals Justices Stephens and Wiggins made a majority with Justices Fairhurst, Madsen, and J. Johnson, holding that the Lummi Nation could not stop and detain a drunk driver off the Reservation until non-Tribal cops could arrive. Again, Eriksen shares little with AUTO, but taking a simplistic pro- or anti-tribal snapshot of the court suggests that if Justice Alexander, set for mandatory retirement this year, does not participate in AUTO, the court could split as follows, depending on whether Wright or Eriksen describes the voting lines:
AUTO is far more analogous to Wright, as procedural issues of sovereign immunity are at play. And it’s certainly not fair or accurate at this point to cast any justice as anti- or pro-Tribal based on these two cases. Indeed, outside the Tribal bar Wright and AUTO might be viewed as cases more about civil procedure (Rule 19 for AUTO and the CR 12(b) standard for Wright) than Tribal sovereignty. At least the results of AUTO will provide court-watchers with more data for guessing at results.
Still, it’s clear what AUTO is targeting legally. As set forth clearly in its brief, AUTO argues that (1) it can join Tribes in the suit by suing tribal officials in their official capacity and (2) Tribes waived their sovereign immunity, apparently as to AUTO, by entering into the fuel compacts. While these claims seem patently wrong, they are the very type of procedural formalisms anti-Tribal jurists can hide behind in fashioning novel expansions of the law related to Tribal sovereign immunity. Stay tuned.
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. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or or via galandabroadman.com.
PACT Act Provision Likely Unconstitutional
The Second Circuit Court of Appeals held today that a provision of the Prevent All Cigarette Trafficking (“PACT”) Act is likely unconstitutional and upheld an injunction halting enforcement of the new law against Red Earth. The Second Circuit’s decision in Red Earth v. USA signals federal courts’ willingness to scrutinize the federal governments’ scorched-earth approach to tribal tobacco economies. Critically, it was not a tribal tax rule that halted enforcement, but rather the most basic tenet of Constitutional law: due process. Putting it even more simply, the PACT Act wasn’t fair. Red Earth d/b/a Seneca Smokeshop (“Red Earth”), a tribal-member owned tobacco retailer on Seneca’s Cattaraugus Indian Reservation in New York, prevailed against the United States at the trial court level earlier this year. The U.S. District Court for the Western District of New York held in July that the PACT Act’s provision requiring out-of-state tobacco sellers to pay state excise taxes regardless of their contact with that state violated due process. The court explained clearly, and not controversially, that due process requires an out-of-state seller to maintain minimum contacts with a state before the state can subject it to taxation. This isn’t even basic Indian tax law, but basic tax law – even basic Constitutional law. The district court found that the PACT Act’s mandate that delivery sellers pay state taxes without regard to their contact with that state effectively “legislate[d] the due process requirement out of the equation.” Red Earth LLC v. United States, 728 F. Supp. 2d 238, 252 (W.D.N.Y. 2010). Today, the Second Circuit agreed, noting that Congress does not have the power to authorize violations of the Due Process Clause of the U.S. Constitution. If the case goes forward, expect it to hinge on whether a single sale into a taxing forum is sufficient to satisfy the requirements of due process.
Regrettably, the Second Circuit rejected Red Earth’s claims that the PACT Act was motivated by discriminatory animus toward Native Americans and that its application results in a discriminatory effect. Red Earth’s claim was not a throwaway discrimination argument. As the district court observed, the PACT Act would have a grossly disproportionate effect on Tribal business, which comprises at least 80 percent of delivery sellers targeted by the PACT Act. In addition, Red Earth has presented evidence that when a letter from the Seneca Nation was introduced into the PACT Act congressional record, there was laughter in the gallery. The Second Circuit was nearly as dismissive, relying on the black letter of the law to find that “Congress’s intent in passing the PACT Act was to curtail what it believed to be improper assertions of Native American sovereignty, not to purposefully discriminate against Native Americans as a group.” It’s difficult to discern the distinction.
In a portion of the Second Circuit’s decision that may have no role in the case itself, the court confirmed a potentially significant channel for challenging federal involvement in state taxes. The trial court had rejected Red Earth’s argument that by attempting to levy state and local taxes, Congress is acting outside its enumerated powers in violation of the Tenth Amendment. But while the case was pending, the U.S. Supreme Court made clear that an individual business can have standing to pursue a Tenth Amendment claim. Again, although Tenth Amendment standing may play no role in the outcome of Red Earth, it remains absolutely critical as states and the federal government join forces to fight tribal economic development. As cash-starved states know, they lack plenary taxing authority in Indian Country. Their solution, all too often, is to come to Indian Country in sheep’s (federal) clothing, and take the taxes they believe they are owed through federal might. Now, at least the Second Circuit will entertain challenges to this practice. When tested Congress’s attempts to apply state and local taxes in Indian Country, especially without Tribal consultation and approval, should be rejected.
In all, Red Earth v. USA presents a significant if preliminary win for tribal sovereignty and the ability of tribal governments to sustain economic development absent state and federal interference.
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.
Taking Government-to-Government Relationships to the Bank
After years of fighting the development of a Cowlitz governmental gaming facility tooth and nail – appealing BIA decisions, questioning the honesty of tribal officials, and even arguing that tribal members do not need jobs as much as non-Indians – local governments in Southwest Washington have finally agreed to negotiate with the Cowlitz Indian Tribe in a government-to-government fashion regarding their proposed plans for a casino. Because now the local governments want something. As reported by the Columbian:
[T]he Cowlitz Indian Tribe . . . is in talks to help La Center pay a portion of the tab for the sewer lines to the junction, in exchange for aid moving waste from its 152 acres of land west of I-5, city and tribe officials said. The Cowlitz tribe aims to build a casino on its land.Six months after the La Center City Council voted to open talks with the tribe, leaders of both bodies said Tuesday that preliminary negotiations are going well and they hope they can forge a mutually beneficial relationship. That includes current talks about sewers, which have been ongoing the past month, and soon-to-come discussions on a new interchange off I-5 that would allow motorists easier access to the tribe’s land.
Such talks are significant considering the council and tribe did not officially speak about the proposed casino for four years after the council banned all dialogue with the tribe in 2007.
“I am quite surprised,” La Center Mayor Jim Irish said of negotiations, “considering we didn’t want to work with them in the past.”
This is nothing new. Slowly, local governments are coming to realize that working with tribal governments to find amicable solutions to mutual problems is much more beneficial than the zero-sum games of yesteryear.
In fact, even cash contributions are not off the table. Earlier this year, in New york, the Seneca Nation contributed over $1 million to a fund to help local government infrastructure; in California, the Yolo Indian Gaming Community Benefit Committee awarded over $200,000 in grants to local agencies affected by tribal gaming; in Michigan, the Saginaw Chippewa Indian Tribe distributed over $2.3 million to nearby schools and local governments; and here in Washington State, as reported by NPR,
Native American tribes . . . are bailing out financially troubled local governments. Most native tribes are still among the poorest communities in the U.S. But in Washington, casino revenue has allowed tribes to make big donations to school districts and even to fund local government positions.
Unlike state and local governments who have no qualms invading the sovereignty of other nations when their coffers run dry, tribal governments are on their own, looking inward for solutions – and finding them. Diversifying business; actively asserting tribal sovereignty; reinvesting in local economies; protecting areas of cultural significance; investing in clean energy; generally reevaluating the playing field – this is what’s going on in Indian country today. As state and local governments flail around aimlessly, wreaking havoc in Indian country and beyond, tribes are showing integrity. And as good neighbors, tribes are willing to lend a helping hand. Indeed, according to Melvin Sheldon, Chairman of the Tulalip Tribes, many tribes in Washington State are now “able to help out other communities. [F]or the tribes that can give . . . it’s a way to say hey, we've made it, and this is who we are.”
Local governments take notice: working with tribal governments is an idea that you can take to the bank.
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.
Beware: The Washington State Tax Man Cometh to Indian Country
Washington Indian Country, With the state down $1.4 billion in tax monies yet unable to raise taxes thanks to Tim Eyman, brace for continued tax attacks by Washington state and local government -- and dare I say, discussion of state-tribal gaming revenue sharing like never before.
The Washington State Tax Man Cometh. Be prepared.
Gabe
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.
Indian Law Attorney Anthony Broadman Elected Chair of the Washington State Bar Association Administrative Law Section
Anthony Broadman was elected as Chair of the WSBA Administrative Law Section at its annual meeting yesterday in Seattle. Anthony, a Partner with Galanda Broadman PLLC, a boutique Seattle law firm that he co-founded in 2011 with Gabe Galanda, will serve as Chair of the Section until September 2012. The Administrative Law Section serves the interests of public and privatesector attorneys who work with state, local and tribal government agencies, as well as administrative law judges, hearing officers, review officers and other judicial personnel.
Anthony’s practice focuses on representing tribal governments in jurisdictional and taxation disputes. His scholarship has focused largely on tribal interests and the law of administrative agencies. From 2007 to 2010, Anthony practiced at a medium-sized regional firm, focusing on litigating issues critical to tribes and businesses operating in Indian Country.
Anthony has appeared before Washington state trial courts, federal district courts, and tribal, state and federal administrative bodies. Anthony has diverse trial and litigation experience, ranging from arguing and obtaining an injunction against the U.S. Department of Agriculture in federal court, serving – successfully – as lead trial counsel for a Fortune 500 company in a Washington business dispute, to his jury trial defense of a public employer at the state trial court level. In 2010, Anthony was named a Rising Star by Washington Law & Politics magazine.
Anthony has previously served as Chair-elect, Treasurer, and Secretary of the Washington State Bar Association Administrative Law Section and is a Trustee of the Washington State Bar Association Indian Law Section. He is editor of the Indian Law Newsletter, published by the Indian Law Section and is admitted to practice in Oregon and Washington.
Galanda Broadman PLLC is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters. The lawyers of Galanda Broadman PLLC – Gabe Galanda, Anthony Broadman and Ryan Dreveskracht – earned their law degrees from the University of Arizona College of Law. For additional information about Anthony or Galanda Broadman, visit galandabroadman.com.
Seattle Indian Lawyer Gabe Galanda Named to Best Lawyers in America in Gaming and Native American Law
Gabriel “Gabe” Galanda has been selected by your peers for inclusion in the 2012 edition of The Best Lawyers in America® in the practice areas of Gaming Law and Native American Law. Gabe, an enrolled member of the Round Valley Indian Tribes, is a Partner with Galanda Broadman, PLLC, a boutique Seattle law firm that he co-founded in 2011. He has now been selected to The Best Lawyers in America® from 2007 to 2012. Gabe’s practice focuses on complex, multi-party litigation and crisis management, representing tribal governments and businesses. He is skilled at defending tribes and Indian-owned enterprises from legal attacks by local, state and federal governments, and representing plaintiffs and defendants in catastrophic personal injury lawsuits. Gabe also mediates and arbitrates disputes between tribal and non-tribal parties, including personal injury matters and conflicts between tribal and local, state or federal governments, as well as tribal intramural disputes.
From 2000 to 2010, Gabe practiced law with the large, regional corporate firm, where he was the youngest lawyer to ever be elected to the firm’s membership and to serve on the firm’s Board of Directors. In 2009, Gabe was named to the Puget Sound Business Journal’s “40 Under 40” list and 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. Washington Law & Politics magazine named Gabe to Rising Stars for 2002, 2004 to 2008 and 2010 to 2011, and also 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 named as one of Seattle’s best Indian law attorneys by Seattle Metropolitan magazine, and one of the "Best Lawyers in the Puget Sound Region" by Puget Sound Business Journal in 2010.
Best Lawyers is regarded as the definitive guide to legal excellence in the United States. Gabe’s selection to Best Lawyers was based on a peer-review survey, which all told comprises more than 3.9 million confidential evaluations by top attorneys throughout the country.
Galanda Broadman is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters. For additional information about Gabe or Galanda Broadman, visit galandabroadman.com.
Ryan Dreveskracht Joins Galanda Broadman
Ryan Dreveskracht has been hired as an Associate by Galanda Broadman, PLLC, a Seattle-based law firm dedicated to representing American Indian interests. In August, Ryan completed a clerkship with Judge Kathleen Kay of the U.S. District Court for the Western District of Louisiana. Ryan received his L.L.M. in Sustainable International Development from the University of Washington School of Law, and his J.D. from the University of Arizona College of Law, where he also obtained a certificate in Indigenous Peoples Law and Policy. He holds a B.A. in Philosophy and Law, Society, and Justice from the University of Washington, and an A.A. from Lower Columbia College.
Ryan is a prolific legal scholar, having published several works regarding energy development, taxation, jurisdiction, and tribal-federal relations. He is the Managing Editor of the National Lawyer’s Guild Review. Ryan’s recent cutting-edge legal and economic scholarship includes:
• Washington State: Collect Your Own Taxes – That’s Where the Money’s At, The Circle: News From a Native American Perspective, August 15, 2011 • The Shifting Tide of Economic Policy: Will Indian Country Be Left to Drown?, Indian Country Today, April 7, 2011 • Native Nation Economic Development via the Implementation of Solar Projects: How to Make it Work, 68 Washington & Lee Law Review 27 (2011) • Tribal Court Jurisdiction Stripping and Native Nation Economies: A Trip Down the Rabbit Hole, 68 National Lawyers Guild Review 65 (2011) • The Impact of Digital Technology on Indigenous Peoples, in Robert A. Hershey, EcoLiterateLaw: Globalization and the Transformation of Cultures and Humanity 114 (2010)
Galanda Broadman is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters.
Peru: Vanguard In Indigenous Land Consultation
States and the federal government could take a lesson from Peru, which recently passed a law guaranteeing indigenous communities the right to be consulted about development on their lands. Peru President Ollanta Humala signed the law requiring companies to seek agreement with rural communities for projects that affect communities or ancestral territories. The former president of Peru had blocked a similar law, claiming that it would chill investment. Besides respecting the inherent right of tribes to be consulted regarding their sovereign interests, states, and the federal government should recognize what President Humala rightly observed: consultation laws reduce conflicts between industry and indigenous peoples. Rather than chilling investment, such laws encourage it. 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. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or or via galandabroadman.com.
