Gabe Galanda was named one of the "Best Lawyers in the Business" by Seattle Business magazine. More specifically, he was honored as one of the "leading lawyers in the Puget Sound region for 2012" in both the arenas of Native American Law, and Gaming Law. This is the second time he has been honored by Seattle Business magazine. 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. He can be reached at 206.691.3631 or gabe@galandabroadman.com.
Tribal 'Disobedience' and Internet Gaming
Modern Indian gaming was born when tribal governments refused to follow state laws in the 70s and 80s. There is no reason to think modern Indian Internet gaming will arrive any differently. If Indian Country hopes to remain at the forefront of gaming, it will have to have a role in Internet gaming this year. And that role will not be given to tribes; it must be taken. Had the Cabazon and Morongo Tribes waited for Congress to give tribes the unobstructed right to game, there’s a real chance that the 422-casino, $26 billion dollar industry would have never materialized. See California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Indian gaming exists because tribal governments opened gaming facilities and dealt with the consequences afterward. Tribes took what was rightfully theirs. Had they simply asked for recognition of their gaming rights from states or Congress, they would never have received them. Like anything worthwhile, it took a fight.
Call it breaking state laws (which we know have never applied to tribal governments), or exercising tribal sovereignty, the result was the same. When tribes took what was theirs, Congress, and the states reacted. IGRA was born, and the rest, though fraught with intergovernmental dispute, is history. There is no reason to think that tribes can enter the Internet gaming market any differently. Indeed, according to Professor Robert O. Porter, “Tribal disobedience,” the “process by which Indigenous people engage in ‘disobedient’ actions against the colonizing government in order to protect and defend their inherent and treaty-recognized rights,” is absolutely necessary to ensure the survival of tribal sovereignty.
Certainly, it’s naïve to think that Indian Country will get a seat at the table simply by asking for one. First, states will never treat tribal governments with the requisite respect for such a seat to mean anything. And the federal government doesn’t do anything it doesn’t have to do. Second, the Internet gaming table isn’t even set. We know it’s coming, but we don’t know how. We think it will be federally regulated, by Commerce or Treasury, but as of now we don’t know whether the NIGC will be consulted before it comes, let alone have any role in regulating it. None of the bills before Congress contemplate the NIGC having any role, even though gaming on Indian lands is subject to IGRA.
On Friday, the Department of Justice made public for the first time its new opinion that interstate Internet lotteries do not violate the Wire Act. And that, probably not coincidentally, was right after Nevada regulators on Thursday paved the way for intra-Nevada online poker. Whatever its form, nationally regulated Internet gaming will change gaming permanently and unrecognizably, and it is thus crucial that tribes get involved now. Regulated online gaming will do for gaming what email did to college. Or business. It’s hard to fathom what Internet gaming will mean. But put simply: it will change everything.
State-sanctioned handheld lotto is just the beginning. Your Monday night football picks, with your season winnings to date, might appear automatically on Facebook, with your online poker or blackjack daily or lifetime winnings appearing in your profile. People will still play in casinos. But there’s a real chance that brick-and-mortar casino numbers will pale in comparison to the daily drop we will see among 20-somethings on their iPhones. New markets flocking to regulated online gaming will be born overnight. And players who frequent tribal casinos may still do so. But new players may never set foot in one, choosing instead to play regulated online slots on their bus rides, roulette while waiting for movies to start, or, as was common at one law school in 2006, online poker during Contracts class.
The regulated online gaming burst may coincide with the bust of tribal exclusivity. Pressure from non-tribal gaming is growing, coupled with hemorrhaging state and local budgets. And there’s simply too much at stake for non-tribal casinos to pack up and go away. Two Oregon businessmen are at it for the fourth time outside of Portland. And the old saw about leveling the playing field comes up about every two years in Washington State. Eventually something will stick.
What’s the answer for Indian Country? In addition to pursuing non-gaming economic development, tribal governments accustomed to steady growth at their brick and mortar casinos have to appreciate what gaming will look like in 2015, 2020, and beyond. Some tribes have already stuck a toe in the water, launching free poker sites and laying the infrastructure for pay poker. It may not be the first tribe who submits an ordinance that includes Internet poker to the NIGC that blows open Internet gaming. But if tribes begin doing so, the NIGC will have to act, and Congress will respond. And if tribes can offer gaming online without triggering IGRA or NIGC/DOJ involvement, Congress will react. It will take an event like Seminole v. Butterworth, or California v. Cabazon, or maybe even some missteps like the Bay Mills off-reservation casino. But when the gaming pundits and lawyers suggest asking for a “seat at the table,” recall that tribal governmental gaming has never been given anything. If tribes are to have a seat at the Internet gaming table, they must take it.
Anthony Broadman is a partner with Galanda Broadman PLLC in Seattle, and focuses his practice on issues critical to Indian Country. He can be reached at anthony@galandabroadman.com or 206.321.2672.
Ryan Dreveskracht Opines on Congress' Failure to Fund the TLOA
Ryan Dreveskracht is quoted at length today in Rob Capriccioso's article in Indian Country Today, Do Congress and Obama Really Support the Tribal Law and Order Act?. 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.
Pechanga.net and Indianz.com feature "Dear Santa, Please Buy Indian Again"
Victor Rocha's Pechanga.net, and Indianz.com have both posted "Dear Santa, Please Buy Indian Again (2011)." Gabriel "Gabe" Galanda, a partner at Galanda Broadman PLLC, is an enrolled member of the Round Valley Indian Tribes of Covelo, California.
Dear Santa, Please Buy Indian Again (2011)
Dear Santa, I've been good again this year and am very excited for Christmas.
Thank you for all of the wonderful Native-made presents you brought my family and me last year. Will you please do the same this year? Since none of this stuff is made at the North Pole you'll have to buy it again from Indian Country -- you know, Buy Indian -- OK?
For my mom, please bring her a purse or scarf made by Dorothy Grant. She will feel so good wearing something so beautiful.
For my dad, please bring him all the Umqua Indian Foods beef jerky he can eat. He’s easy to please.
For my oldest brother, please bring him a Louie Gong print Psycho Killer Whale Linocut Print. It will look cool in his college dorm room.
For my older sister, please bring her a Litefoot action figurine, with flat-billed lid, high tops and beat-box accessories. She has a major crush on him. If he is out of stock, please bring her a Litefoot gift set.
For me and all of my brothers and sisters, please bring them something from Native Threads, Nakota Designs, HYDZ Gear, or Haida Shoes. All of that Native-made gear is awesome.
For me and my cousins, please bring us Gyasi Ross' new book, "Don't Know Much About Indians."
For the singers and drummers in my family, please bring them a JBear Rawhide hand drum.
For my great aunties, please bring them something authentic from the Quileute Nation. They are huge Twilight fans and would love anything made by Quileute People.
For my mom, aunties and grandmas, please bring them Sister Sky indigenous bath and beauty products. I know they’ll love the stuff's smell and feel.
For my uncles and grandpas, please bring them Tanka Gift Baskets. They’ll love the buffalo snacks.
For everyone, please put Tanka Bars in our stockings. Another great stocking stuffer: Star Nayea’s Christmas Dream CD. Life’s Beautiful Journey holiday cards by Linley Logan would also be a nice touch.
Finally, for my tribe’s and all tribes’ leaders, please give them the tools to build vibrant small Indian business sectors and inter-tribal economies so Indian Country will prosper for generations to come, especially when Indian gaming fades away. Unfortunately you must have run short on these tools last Christmas, as Buy Indian still isn’t a reality in Indian Country in 2011. Hopefully that will change in 2012.
Oh, and although I left you homemade chocolate chip cookies last year, I hope you will try the Tanka Bar I left you this year. It should allow you to squeeze down those chimneys a bit easier.
Thank you, Santa!
Jimmy Indian, age 9
Proposed Federal Leasing Rule Could Spur Tribal Renewable Energy Development, Finally
On November 28, the Department of the Interior issued a proposed leasing rule, 25 C.F.R. § 162. According to the DOI, the rule will “remove referral roadblocks to economic development[,] restore greater control to tribal governments[,]streamline the approval process for home ownership, expedite economic development[,] and spur renewable energy development in Indian Country.” Although not as comprehensive as it could be, the proposed regulation change is a significant step in the right direction.
The proposed regulations will streamline the leasing process by imposing timelines on the Department for reviewing leases: up to 30 days for residential leases, and up to 60 days for business leases and wind and solar energy leases.
The proposed regulations will also distinguish between residential, business, and wind and solar energy leases, and establish separate processes for review, as well as permitting the automatic approval of subleases and amendments to existing leases.
Further, the proposed regulations eliminate the requirement for Department approval of “permits” for activities on Indian lands, and defer to the judgment of tribes and individual Indians on land use and rental rates.
The proposed regulations will also establish a new, streamlined process for the development of wind and solar energy projects on Indian lands, by distinguishing between leases based on whether they are for residential, business, or wind and solar energy development.
The proposed rule will not apply to subsurface lands or agricultural leases, nor will it modify the agency’s obligation to comply with federal environmental laws and policies. However, because the proposed regulations require federal approval in fewer instances – the “federal action” triggering the application of federal environmental laws – it is likely that a significant environmental-regulatory burden will be lifted.
The Department of the Interior has drafted a comparison chart of existing and proposed regulations, available here.
Ryan Dreveskracht is an Associate at Galanda Broadman PLLC. 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.
The PACT Act Violates All Tribes’ Sovereignty
Yesterday, Washington, DC U.S. District Court Judge Royce Lamberth – who played an instrumental role in Cobell – struck a blow to the PACT Act, by preliminarily enjoining federal enforcement of the Act. Judge Lamberth's decision is the second federal court ruling that the PACT Act is unconstitutional, in recent months. While the potentially positive implications of the decisions for Indian Country are still being sorted out, the PACT Act remains an imminent threat to the sovereignty of all Tribal governments, and to any notion of tax-free inter-tribal commerce and trade.
The PACT Act of 2010, as federal agencies no doubt still intend to implement it, violates the sovereignty of all Tribal governments – not only those involved in tobacco commerce. Tribal sovereignty, at its core, includes the right of Tribal Governments to be ruled by their own laws and govern their own economies. But the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), by inviting states and state law into Indian Country, has made clear its intent to enforce the Act in a way that will gut Tribes’ inherent right to self govern and chill Indian economic growth.
According to the U.S. Department of Justice (DOJ), the PACT Act requires Indian tobacco enterprises to comply with state tobacco laws – even within Indian Country. For two centuries, courts have generally barred states from applying their laws to Tribes and Indian businesses within Indian Country. But federal agency interpretation of the Act threatens to change the tribal-state status quo. It requires no close analysis of the law to see that the federal government is shepherding state tax agencies into Indian Country. Although today’s state-federal attacks focus on tobacco, DOJ is establishing a dangerous precedent; one under which the federal government will pass federal laws allowing states to extract previously unavailable value from Tribal economies and causing DOJ to become the states’ enforcement arm in Indian Country.
DOJ’s interpretation of the PACT Act is inconsistent with the law itself, which on its face prohibits the Act from being used to confer states regulatory authority over Indian Country commerce. As the DOJ and ATF read the law, however, the PACT Act widely opens an unprecedented avenue for states to regulate and tax Tribal and inter-Tribal commerce and trade.
The United States has stated that the Act’s definition of “interstate commerce” includes sales within or between Indian reservations. Legal nuances aside, DOJ’s application of the PACT Act’s “interstate commerce” to inter-Tribal tobacco trade – meaning trade between Tribes situated in different states – is a recipe for Tribal economic disaster. Tribes freely traded between and among themselves long before state governments or taxation existed. To now allow state taxation of inter-Tribal commerce and state regulation of the budding Tribal private sector, under color of federal law and law enforcement, threatens to set Tribal economies back nearly two centuries – to when states destroyed Indian Country’s original economies.
Again, the PACT Act expresses Congress’ clear intent that the law not adversely effect Tribal sovereignty. Indeed a pro-Tribal interpretation clause of the Act requires ambiguities in the new law to be resolved in favor of preserving Tribal sovereignty and immunity from state authority. Incredibly, though, the Executive Branch’s interpretations of the law have taken the very opposite approach, with the Act being construed to favor state regulation and taxation in Indian Country. States have already seized the DOJ’s written interpretation of the PACT Act to regulate and tax – the proverbial power to destroy – Tribal and inter-Tribal economies.
Notwithstanding yesterday's court ruling, all of Indian Country must stand together now, united in vocal opposition to the PACT Act.
Gabriel "Gabe" Galanda, a partner at Galanda Broadman PLLC, is an enrolled member of the Round Valley Indian Tribes of Covelo, California.
Congress Strikes a Blow to Tribal Law and Order Act
According to the 2008 National Crime Victimization Survey, American Indians experience almost twice as much violence as other Americans. Among tribal members age 23 to 34, the rate of violent crime victimization is over 2.5 times the rate for all persons the same age. This is particularly true for Native American women, one-third of whom will be raped in her lifetime, most likely by a non-Indian. The Tribal Law and Order Act of 2010 ("TLOA") was Congress' official recognition that the federal government's approach to law and order in Indian country had absolutely failed. Indeed, it is federal law and policy alone that is primarily to blame for these statistics.
One way the TLOA sought to remedy the epidemic was to mandate that federal law enforcement cooperate and coordinate with tribal law enforcement. The TLOA sought to immediately increase tribal law enforcement funding levels. Because Indian country crime is local, these consultation and tribal funding mandates were deemed crucial to the effectiveness of the TLOA.
Most recently, on November 14, 2011, Congress released the fiscal year 2012 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Programs Report, striking a major blow to the TLOA. The report indicates funding cuts for tribal justice programs across the board, and did not include a tribal set-aside for discretionary Office of Justice Programs needed to implement the TLOA. The Report also proposes $15 million cuts to both the COPS Tribal Resources Grant Program and the Tribal Youth Program. Funding for tribal assistance within Office of Justice programs was also cut, receiving only $28 million – $62 million short of the approximate $100 million initially proposed in President Obama's FY 2012 budget request.
In order for the TLOA to have any effect, federal agencies must comply with the law and Congress must provide adequate funding. Unfortunately – and in violation of the federal government's trust and treaty obligations – it appears that neither of these obligations are being fulfilled.
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.
