New York State: Deadliest Enemy of the Tribes

In 1886, the United States Supreme Court, in the U.S. v. Kagama case, noted that states were often the “deadliest enemies” of tribal governments. In modern times, however, as noted by Professor Matthew Fletcher:

States and tribes are beginning to smooth over the rough edges of federal Indian law – jurisdictional confusion, historical animosity between states and Indian tribes, competition between sovereigns for tax revenue, economic development opportunities, and regulatory authority – through cooperative agreements. In effect, a new political relationship is springing up all over the nation between states, local units of government, and Indian tribes

It is therefore unfortunate that the State of New York, and the City of New York, have shirked opportunities to cooperatively resolve tobacco taxation issues with their neighboring tribal governments. Instead, according to Indian Country Today:

The bloodiest battles of the decades-long cigarette tax war took place in 2010 when the federal and state governments passed crippling legislation against the tobacco economies of Indian nations. . . . In February, with New York state facing a $200 million deficit and pressure mounting from anti-Indian state legislators, then Gov. David Paterson, who had claimed respect for Indian sovereignty and the government-to-government relationship, instructed the state’s tax department to issue draft regulations on a new law to force the collection of state sales taxes on tobacco products sold in Indian country.

Sadly, leaders like Governor David Paterson and Mayor Michael Bloomberg, whose advice to the Governor was to "get yourself a cowboy hat and a shotgun" and enforce the state's new tribal tobacco tax laws, have caused state-tribal relations in New York to regress to where they were 125 years ago.

Hopefully incoming Governor Andrew Cuomo will seek out and seize collaborative opportunities to smooth out the edges of federal Indian law with his neighbor tribes, rather than allow New York to persist as the reborn deadliest enemy of tribal sovereignty.

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.

Tribal Members, Be Warned: The State Tax Man Cometh

Coverage of state budget crises like the New York Times editorial, "The Looming Crisis in the States" should serve as a warning to Indian Country. Observing that "[t]he most immediate cause of the states’ problems is the decline in tax revenue caused by the downturn," and citing a 10% decrease in state sales, personal and corporate taxes over the past two years, the Times recommends state tax increases, most notably income tax hikes. New personal or corporate taxes, or objects of such state taxes, are also in play. Tribal governments and Indian gaming proceeds are categorically immune from any state taxation under federal law. Notwithstanding, states like California are already seeking to tax Indian gaming revenues -- for example, once those monies trickle downstream to tribal members. Even though federal law also immunizes tribal members from state taxation, individual Indians, especially those living or doing business off-reservation, should expect to increasingly be the targets of state income tax assessors.

State tax assessors will tax Indians now, and sort out the legalities -- or illegalities -- later.

To preemptively frustrate any state's attempt to balance its budget on the backs of individual Indians, tribes and tribal members should aggressively engage in tribe-wide tax planning and if necessary, tax protest and litigation. Will your tribe be ready when the state tax man cometh?

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.

Mega Solar Power Development Stopped for Failure to Consult

On December 15, a Southern California Federal District Court enjoined the United States from allowing the development of a large solar power project to proceed, because the U.S. Department of Interior's Bureau of Land Management failed to properly consult with the Quechan Tribe. The project is proposed for development in Southern California's Imperial Valley; on federal lands off of the Quechan Reservation but amidst hundred of tribal sacred sites. In a sweeping decision, the District Court ruled that the United States' so-called consultation efforts with the Quechan Tribe, as required by the National Historic Preservation Act (NHPA), among other federal laws, were wholly inadequate:

In other words, that BLM did a lot of consulting in general doesn't show that its consultation with the Tribe was adequate under the regulations. Indeed, Defendants' grouping tribes together (referring to consultation with "tribes") is unhelpful: Indian tribes aren't interchangeable, and consultation with one tribe doesn't relieve the BLM of its obligation to consult with any other tribe that may be a consulting party under NHPA.

The District Court further observed:

BLM's invitation to "consult," then, amounted to little more than a general request for the Tribe to gather its own information about all sites within the area and disclose it at public meetings. . . . While public informational meetings, consultations with individual tribal members, meetings with government staff or contracted investigators, and written updates are obviously a helpful and necessary part of the process, they don't amount to the type of "government to government" consultation contemplated by the regulations. This is particularly true because the Tribe's government's requests for information and meetings were frequently rebuffed or responses were extremely delayed as BLM-imposed deadlines loomed or passed.

According to the ruling, the private energy developer hoped to qualify for stimulus funds under the American Recovery and Reinvestment Act of 2009 by beginning construction by the end of 2010. "To that end, BLM apparently imposed deadlines of its own choosing," the Court observed.

Because of the large number of consulting parties (including several tribes), the logistics and expense of consulting would have been incredibly difficult. None of this analysis is meant to suggest federal agencies must acquiesce to every tribal request. That said, government agencies are not free to glide over requirements imposed by Congressionally-approved statutes and duly adopted regulations. The required consultation must at least meet the standards set forth in 36 CFR 800.2(c)(2)(ii), and should begin early. The Tribe was entitled to be provided with adequate information and time, consistent with its status as a government that is entitled to be consulted. The Tribe's consulting rights should have been respected. It is clear that did not happen here.

Presumably, without federal stimulus funds, the future of this high-profile Southern California solar energy project is in doubt.

Despite President Obama's November 5, 2009 Tribal Consultation Memorandum, and in turn various federal agencies self-touted efforts to consult with Indian tribes on tribal consultation, the District Court's ruling is at least the second such decision against the United States resulting from the Feds' failure to consult with Indian tribes regarding federally-backed private development projects, in the latter half of 2010.

In August, in Confederated Tribes and Bands of the Yakama Nation v. U.S. Dept. of Agriculture, the federal Indian consultation right was successfully wielded before a Washington State Federal District Court to put halt the USDA's efforts to allow a private contractor to import solid waste from the Hawaiian Islands, into Yakama ceded lands and historic fishing, hunting and gathering areas.

One can only hope that a third strike against the Obama Administration is not required before the Federal Government truly appreciates its abiding obligation to consult with tribal governments in any matter of tribal implication -- and the disastrous economic and non-economic consequences for its failure to consult.

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.

U.S. Endorses International Indigenous Consultation Norm

Today, the United States officially endorsed the United Nations Declaration on the Rights of Indigenous People. In doing so, the United States endorsed the international legal norm of consultation with indigenous, including American Indian, people, embodied various Articles in the Declaration, most notably Articles 18 and 19:

Article 10 Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 11 1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 28 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

On top of various federal laws, including Indian Treaties, Presidential Executive Orders and Memoranda, statutes, regulations and federal agency policies and protocols, and the federal common law, as well as international Treaty norms, the Declaration entrenches the United States' obligation and commitment to government-to-government consultation with American Indian tribal governments.

Tribal governments should invoke any or all such federal laws, as well as the Declaration, when government-to-government consultation is next required of the United States. For additional information, see The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion.

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.

Dear Santa: Buy Indian Christmas List

Dear Santa, I've been good this year. Please bring all of this stuff for me and my big Indian family:

For my mom, please bring Sister Sky bath and beauty products made from natural indigenous ingredients. They will make her feel so good.

For my dad, please bring him all the Umqua Indian Foods beef jerky he can eat. He loves the stuff.

For my younger brother, please bring him a pair of custom-made Eighth Generation shoes, size 8. Louie Gong is awesome.

For my older brother, please bring him Sherman Alexie's book The Absolutely True Diary of a Part-Time Indian. I don't like to read but he does.

For my older sister, please bring her Gyasi Ross. She really needs a boyfriend and he's pretty cool. If Gyasi's out of stock, please bring her a Litefoot CD.

For my cousins, please bring them cool gear from Native Threads. They'll be psyched with a new hoodie or hat.

For my aunties, please bring them fine Indian made jewelry from any of the vendors with the Indian Arts and Crafts Association. They like those big, dangling ear rings.

For my uncles, please bring them prime cuts of all-natural, native grass-fed, free range beef and buffalo from Native Grasslands Beef & Buffalo Co. You can't go wrong with a big steak for all of my big uncles.

For my great aunties and uncles, please bring them gourmet, indigenous harvested coffee from Native Coffee Traders. Coffee is gross but they love the stuff.

For my grandmas, please bring them each a quilt from Concow Quilts in Covelo, California. They are the finest Indian quilts around.

For my grandpas, please bring them each a gift certificates for a Quinault Indian guided fishing tour. They would love to get out of the house for a day.

For my teachers at school, please bring them Indian smoked salmon from First American Natural Foods.

For my tribe and our tribal leaders, please bring them the tools to build a vibrant small Indian business sector so my tribal will thrive for generations to come.

As for me, I just want my own per capita.

Anyway, I hope you like the cookies I made for you.

Thank you, Santa.

Jimmy Indian, age 8

State & Local Government Should Consult With Tribes

According to Stephen Cornell and Joe Kalt:

As we look to the future, there are signs of instability in the support for self-determination. The rising economic and political clout of Indian nations are often seen as threats at the local level to non-Indian governments. Although beyond the scope of this study, this is raising inter-jurisdictional conflicts, often resulting in litigation.

Indeed, while the United States endeavors “to regular[ly] and meaningful[ly] consultation and collaboration with tribal officials in policy decisions that have tribal implications” per President Obama’s Tribal Consultation Memorandum, state and local government often feel no such obligation.

Instead of attempting to resolve inter-jurisdictional differences with their tribal neighbors through consultation and collaboration (which could result in inter-local agreements or compacts), states, counties, cities and townships increasingly turn to litigation for "resolution" of such differences.

Unless the attitude of local government changes in this regard, it is the local citizenry -- Indians and non-Indians alike -- who will literally and figuratively pay the price. Litigation is a zero sum game when governmental monies are used to fund court costs rather than essential programs and services for citizens.

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.