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.

Galanda and Dreveskracht Both Published in Gaming Law Review on Cutting Edge Indian Gaming Issues

Gabe Galanda and Ryan Dreveskracht were each published in the June 2012 edition of Gaming Law Review and Economics, the leading peer-reviewed journal addressing important regulatory and economic issues facing today’s gaming industry. Gabe was featured in a published set of roundtable comments on issues of "Native American Off-Reservation Gaming." Among Gabe's quotes:

“[O]ff-reservation gaming” is simply a politically loaded term, by the design of non-tribal political interests...[W]hat we are more likely than not talking about it is reacquired Indian lands -- lands to be held in trust for tribal governments by their trustee, the United States, for purposes of Indian governmental gaming enterprise."

"Everyone is awaiting the Interior Secretary’s determination on the Spokane Tribe's application for a two-part determination...[for a] proposed a gaming site just a few miles down the road from the Kalispel Casino and Resort, also in Airway Heights. As the crow flies, it’s about thirty miles from the Spokane Reservation. So the very recent acquisitions in California...perhaps bode well for the Spokane Tribe..."

"[A] Carcieri fix, as it has been called, is needed by Congress, both for purposes of trust acquisition relative to gaming and, more importantly, so that tribes can restore their land base and conduct themselves as governments, while diversifying their economies away from gaming....Any Carcieri fix and the issue of so-called off-reservation trust acquisition for gaming purposes are apples and oranges. But Congress has been persuaded to think that those two issues are inextricably intertwined with one another. And it is safe to say, I believe, that, so long as Congress believes that a Carcieri fix will allow so-called "off-reservation gaming," it is very likely that there will never be a Carcieri fix."

"[W]e are seeing a rise of cases like Patchak, where non-Indian citizens or officials are suing the United States or appealing administrative decisions and the tribe is not a party to the administrative litigation or to the federal court lawsuit -- until, perhaps, it is forced to intervene. And, generally speaking, tribes are immune from such administrative or federal court litigation between a non-Indian party and the federal government. But then they are faced with the Hobson's choice of essentially standing behind the shield of that immunity and not involving themselves in the litigation and, therefore, allowing the United States to represent its interests; or to actually consent to the litigation and effectively waive their immunity, because the tribe believes that it is the only party that can adequately represent its interests and because it believes -- perhaps more crucially –- that the federal government cannot adequately represent its interests."

"The tribes, whether by Congress or the Obama Administration, must be given a seat at the internet gaming table and they must be specifically mentioned in any federal law or regulation which allows internet gaming. If the United States flouts its obligations to Indian Country in regards to the legalization of internet gaming, then it may be time for tribal governments to start internet gaming irrespective of the fed. And that, of course, is precisely how modern Indian gaming began in the 1970s; that is what resulted in the Cabazon decision and, ultimately, the Indian Gaming Regulatory Act and, ultimately, it is that civil disobedience, if you will, that resulted in us having this discussion about a $26 billion Indian gaming industry."

Ryan published his article, "Keeping It Clean for the Future of Indian Gaming." A passage:

At minimum, the cautionary tale to lawyers exemplified by Lake of Torches must be told: Saybrook and Wells Fargo filed a $50 million suit against their former attorneys, alleging that Saybrook would not have purchased the bonds and Wells Fargo would not have secured them had it not been for their attorneys’ negligent advice regarding NIGC approval. It is highly unlikely that the attorneys’ malpractice insurance will cover any $50 million judgment. Further, although Lake of Torches was a legal victory for the Lac du Flambeau Tribe, it was Pyrrhic for both the Tribe and Indian Country. While Lac du Flambeau will find it difficult, if not impossible to ever assume another commercial loan, the Lake of Torches imbroglio helped freeze the capital markets for all of Indian Country for much of the last couple of years.

Indian gaming enterprises have an obligation to appreciate and help nullify the danger that non-Indian businesses and their attorneys inadvertently pose to tribal sovereignty. Indeed, the days of tribal lawyers playing ‘‘hide the ball’’ in contract negotiations may need to be a thing of the past. Instead, taking preemptive steps to caution non-Indian businesses to at least hire competent counsel is not only good business, it is very likely necessary to deter the ero- sion of those fundamental principles of law that have allowed Indian gaming to flourish into the present day.

Gabriel "Gabe" Galanda is a partner, and Ryan Dreveskracht an associate, at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  Gabe is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He represents tribal governments and businesses and Indians citizens in all matters of controversy and transaction. He can be reached at 206.691.3631 or gabe@galandabroadman.com. Ryan's 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.

Getting Green in Indian Country: Two Sides of the Buffalo Nickel

A recent study conducted by Small Business America, reveals that  “[a]cross all industries and at both ends of the political spectrum, entrepreneurs overwhelmingly support government investing in renewable energy and creating clean energy policies that will help guide them into a new economic sector where they can do business.”   The study found that “71 percent believe government investments in clean energy play an important role in creating jobs now.”

The federal government is trying its best to make this happen.  President Obama’s goal of generating 80 percent of the nation’s electricity from clean energy sources by 2035 has led to numerous projects on millions of acres of public lands, most in Western states.  The administration has put some of the most promising, shovel-ready projects on a “fast track” for Bureau of Land Management (“BLM”) permitting.  In issuing these permits, federal officials say “they have consulted with multiple tribes and have either made sure the massive solar projects will not harm any historic works or have determined that certain sites are not worthy of protecting.”

But, apparently, the Fed’s idea of what it means to “consult” in making this determination is something other than required by its own clearly defined laws and regulations.  In 2010, for instance, the BLM allowed a solar project to move forward without adequately consulting the tribe whose areas of cultural significance would be directly affected by the project.   Luckily, the tribe was able to obtain an injunction in federal court that put an end to the project before those areas could be harmed.   See Quechan Tribe v. U.S. Dep’t of Interior, 755 F.Supp.2d 1104 (S.D. Cal. 2010) (“[I]f the tribe hasn't been adequately consulted and the project goes ahead anyway, this legally-protected procedural interest would effectively be lost.”).

The Colorado River Indian Tribes were not as fortunate.   Late last month, a solar project named “Genesis” uncovered a human tooth and a handful of burned bone fragments the size of quarters on a sand dune in the shadow of new solar power transmission towers.  As reported by the LA Times:

As a federally recognized tribal group with sovereignty over a 264,000-acre reservation, the Colorado tribes were offended that the BLM approved Genesis without holding “nation-to-nation” consultations with them.  Before construction began, archaeologists had warned that the site near Ford Dry Lake was rich with Native American history.  [D]uring construction last November, workers uncovered a pair of grinding stones and what appeared to be a layer of charcoal. The Colorado tribes say they are evidence of a sacred cremation site.  Genesis claims they are insignificant artifacts. . . . NextEra warns that yielding to the tribes’ demands could result in costly delays that jeopardize completion of the 250-megawatt plant, which is being built on BLM land with the help of an $825-million loan guaranteed by federal taxpayers. . . . Native Americans insist they are not against renewable energy.  The problem is that some solar projects were approved for lands that are an essential part of Indian religion, culture and history — without consultation with affected tribes.

 To be clear (federal agencies take note): “Meaningful consultation means tribal consultation in advance with the decision maker or with intermediaries with clear authority to present tribal views” to the agency decision maker.  This usually comprises of a meeting, during which the federal agency notifies the tribe of the proposed action and justifies its reasoning.  The tribe may then issue a motion of support for the decision, or reject the decision, pursuant to tribal law or procedure.  Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395, 401 (D.S.D. 1995).

The other side of the coin is that, contrary to being “against renewable energy,” tribal governments are in the best position to utilize their land to develop these projects in a manner that is consistent with their culture and tradition, and are actively seeking to do so.  By the numbers, these developments should be paying off: An estimated $1 trillion in revenue is possible were Indian country to fully develop its energy resources.  With tribes already feeling the brunt of global warming, the environmental benefits of using alternative energies to support the next generation are increasingly being explored. Where unemployment levels are disproportionately high in Indian country, perhaps equally important is that alternative energies are job-creating hothouses.

But as I noted last summer, the federal government has failed to allow tribes to enter the alternative energy market at all.  In short, were a Tribe to chose to develop its own lands in a similar manner – save for the disturbance of its areas of cultural and spiritual significance – the project would have been a dead end.  Pursuant to 25 U.S.C. § 415, transactions involving the transfer of an interest in Indian trust land must be approved by the Bureau of Indian Affairs (“BIA”).  And even where the tribe structures the project without leasing its land, 25 U.S.C. § requires that the BIA approve contracts that could “encumber” Indian lands for a period of seven or more years.  In these instances the BIA approval process constitutes a “federal action,” which triggers a slew of federal laws that the BIA must comply with – laws that can take over 12 years to comply with and can generate millions of dollars in additional cost.

In August of 2010, Senator Byron Dorgan (D-ND) introduced S. 3752, “[a] bill to amend the Energy Policy Act of 1992 to streamline Indian energy development, to enhance programs to support Indian energy development and efficiency, to make technical corrections.”  In short, the bill attempted to reduce the Federal burdens through mandated interagency coordination of planning and decision-making; regulatory waiver provisions; relief from land transaction appraisal requirements; and the elimination of fees assessed by Bureau of Land Management for applications for permits to develop Indian lands.  But the bill died before it was introduced to the full Senate.

More recently, in October of last year, Senator John Barrasso (R-WY) introduced S. 1684, “[a] bill to amend the Indian Tribal Energy Development and Self-Determination Act of 2005.”  Although not as robust as S. 3752, S. 1684 is significant in that it makes the Tribal Energy Resource Agreement (“TERA”) provision of the Indian Tribal Energy Development and Self-Determination Act of 2005 somewhat workable.  Section 103 of the bill extends an approval exemption to leases, business agreements, and rights-of-way granted by a tribe to a tribal energy development organization in which the tribe maintains a controlling interest, thereby expanding the opportunity for access to capital for direct tribal development without federal approval where the tribe continues to control the activity.  This Section also provides for a favorable tribal capacity determination based on a tribe’s performance of 93-638 contracts or self-governance compacts over a three year period without material audit exceptions; allows for TERA funding transfers to be negotiated between the BIA and the tribe based on cost savings occasioned by the Interior Department as a result of a TERA; and confirms that TERA provisions do not waive tribal sovereign immunity.

Last week, the Senate Committee on Indian Affairs held a hearing on S. 1684, where numerous tribal officials indicated their support for the bill.  Although many officials submitted that “biggest problem is what is not in the bill” – as “S. 1684 barely scratches the surface of outdated laws and regulations, bureaucratic regulatory and permitting processes, and insufficient federal staffing or expertise to implement those processes” – the overall sentiment was that S. 1684 is a much needed step in the right direction.  As noted by Tex G. Hall, Chairman of the Mandan, Hidatsa, and Arikara Nation of the Fort Berthold Reservation: “If Indian tribes are going to unlock the potential of their energy resources and provided needed domestic energy supplies, we need real changes in the law.  Changes that affirm tribal authority, provide tribes access to funding and financing opportunities, and allow tribes to participate in federal energy programs that have over looked tribes for decades.”

The next step will be for the Senate Committee on Indian Affairs to consider mark-ups to the bill.  A fine line will need to be towed.  Hopefully, considering the testimony of tribal leaders submitted last week, mark-ups can make the bill as hearty as the previously introduced S. 3752.  However, a step in the right direction is better than no steps at all, and any changes that will furnish the bill a similar fate should be avoided.

Hopefully both sides of the coin – cultural property protection in the face of any callous non-Indian energy development, and streamlined tribal energy development for sake of tribal self-determination – can be realized by the revised S. 1684.  The protection of Indian Country, both in the long and short term, quite literally depends on it.

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.

The Grassley-Hutchinson VAWA Amendment is an Affront to Tribal Sovereignty

Senate amendments to the Violence Against Women Reauthorization Act (“VAWA”) should be completed today.   According to Senate Minority Leader Mitch McConnell (R-Ky.), “Republicans are working with Democrats on an agreement to consider just a few amendments to the bill, and a short time agreement on those amendments.” From the very beginning, Sen. Chuck Grassley (R-IA) had opposed the VAWA, even requesting that Senate Judiciary Republicans unanimously vote against it because of what he believes are “problematic provisions of the committee bill [that] would give tribal courts authority to arrest, try and imprison any American” – provisions that he believes are “probably unconstitutional.”  Now, Senator Grassley has teamed up with Sen. Kay Bailey Hutchison (R-TX) to offer “a substitute that would address GOP concerns with the bill.”  Although the full details of Grassley and Hutchinson’s changes have yet to be released, it is likely that they will map their previously stated opposition to providing tribal jurisdiction over non-Indians.

These “concerns” are unfounded and, quite frankly, offending.

Prior to the Supreme Court’s decision of Oliphant v. Suquamish Indian Tribe in 1978, tribal governments had full authority to exercise criminal jurisdiction over non-Indians who voluntarily entered into Indian Country and committed crimes.  Lifting restrictions on the ability of tribal governments to exercise this inherent sovereign authority is by no means unconstitutional.  Because the Court’s decision in Oliphant was rooted in federal common law – bluntly racist common law denouncing tribal governments as “inferior” and “dependent upon the fostering care and protection of the [United States],” United States v. Sandoval (1913) – the Supreme Court has held that Congress has full authority restore the pre-1978 status-quo by “lift[ing] the restrictions on the tribes’ criminal jurisdiction.”  United States v. Lara (2004).  In the VAWA Congress has partially done so, and with full constitutional authority.

According to a recent iteration of the Senators’ argument put forth by the Heritage Foundation: “Today, if John and Mary Smith were visiting a casino on an Indian reservation and John assaulted Mary, John would be charged by the federal government with assault and would be prosecuted by the local U.S. Attorney’s Office in federal magistrate court.”

This, of course, is the problem. Were the local U.S. Attorney’s Office doing its job, Indian women would not face a 34-percent chance of being raped.  Evidence collected by the Justice Department, as well as nongovernmental organizations such as Amnesty International, indicate that an overwhelming majority of these cases are going unreported, uninvestigated, and unprosecuted.  Rather than leaving the protection of Indian Country up to federal police forces and prosecutors who have proven themselves incapable and uninterested in putting an end to reservation crime since the sole authority to do so was vested there in 1978, in the VAWA Congress has, correctly for once, determined that tribal justice systems are in the best position to turn things around.  Indeed, the Senators and the Heritage Foundation recognizes this logic vis-à-vis the states: “To address the problem of domestic violence appropriately, the federal government should limit itself to handling tasks that have been assigned to it by the Constitution and which state and local governments cannot perform by themselves.”  Why that same logic does not apply to Indian Country, the Senators and their constituents do not, and cannot, offer an explanation.

Moreover, the Senators are flat-out wrong in assuming that the VAWA would have much play, if any, in this hypothetical.  The VAWA authorizes tribes to exercise criminal jurisdiction only: (1) over domestic violence, (2) when the victim is an enrolled member of an Indian tribe, and (3) where the defendant resides in Indian Country, is employed by the prosecuting tribe, or is a spouse or intimate partner of a member of the prosecuting tribe.  So, unless Mary Smith was a member of an Indian tribe, assuming that John and Mary were married, the tribe would not have jurisdiction over John under the VAWA.

And, of course, no Republican discussion of tribal court jurisdiction would be complete without the obligatory talk of inferior tribal justice systems that are incapable of upholding non-Indian constitutional rights and notions of due process: “A non-Indian subject to tribal jurisdiction would enjoy few meaningful civil-rights protections. Courts have held, for example, that tribal governments are not bound by the Constitution’s First, Fifth, or Fourteenth Amendments.  What this means is that if somebody is accused of abuse on tribal lands, the accused can kiss normal constitutional protections good-bye.”

Of course, this is wrong.  The Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1301-1303, requires that tribal courts provide all rights accorded by state and federal courts.  Section 904 of the VAWA also requires that tribal courts provide further minimal guarantees of fairness.  If the ICRA and VAWA are not followed, federal courts have jurisdiction to review the tribal court proceedings – and the VAWA further requires that federal courts grant a stay of the tribal proceeding if there is a substantial likelihood that those provisions of federal law were not followed.  Further, the VAWA does not raise the maximum one-year sentence that tribal courts may impose for any crime.

To any extent that the Senators are arguing that tribal courts are somehow incapable of providing the requisite safeguards, this red herring – based on the same racist arguments of inferiority espoused in Sandoval and Oliphant – should be cast aside.  There is simply no evidence that tribal courts and tribal judges are unable to be fair and just.  To the contrary, numerous studies have proven otherwise.  See e.g. Bethany Berger, Justice and the Outsider: Jurisdiction Over Nonmembers in Tribal Legal Systems, 37 Ariz. St. L.J. 1047 (2005).  For the Senators to assert otherwise is simply irresponsible.  As to Congress’ odd attempt to “protect” its citizens from non-traditional forums, if that duty exists at all, as I’ve said before:  If these citizens don’t trust the ability of tribal courts to be fair and just, then they shouldn’t commit assault or rape on Indian Reservations.

One can only hope that the Grassley-Hutchinson amendment does not make it into the final version of the bill.  Anything less than the limited provisions of the VAWA addressing violence against Indian women, as it is currently drafted, would be an epic failure.  As it is, women are being attacked on an unimaginable scale.  And every study to address the issue has concluded that “[j]urisdictional issues present the main barrier to prosecution” of those offenders and play the largest role in creating the violence against women statistics in Indian country.  Marie Quasius, Native American Rape Victims: Desperately Seeking an Oliphant Fix, 93 Minn. L. Rev. 1902, 1904 (2009).  Only local tribal justice systems are capable of understanding and being accountable to victims of violence and their communities.  For the Senate to ignore this jurisdictional conundrum is a reckless and clear violation of the federal trust responsibility.

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.

Tribal Regulation Immunizes Certain Tobacco Sales from Federal-State Interference

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. United States v. Wilbur, 10-30185, 2012 WL 1139078 (9th Cir. Apr. 6, 2012). The Ninth Circuit ruled last week in Wilbur that even if cigarettes are transported in violation of state law, the CCTA only makes cigarettes “contraband” in this context if they “bear no evidence of the payment of applicable State or local cigarette taxes in the State or locality where such cigarettes are found.” 18 U.S.C. § 2341(2). The cigarettes at issue during one period of the Wilbur case were unstamped. But the defendants qualified as an Indian retailer under Washington state law, came partially within the constraints of a tribal tobacco tax compact, and therefore were not subject to state taxes – even though they were allegedly illegal under state cigarette transportation laws and were out of compliance with some tribal regulations.

At its core, for the period in which convictions were overturned, the decision implicitly recognized the legitimacy of tribal tobacco regulation. This could, by analogy or otherwise, undercut the interpretation of the PACT Act by federal agencies that suggests tribal tobacco entities must be licensed by the state to be considered “lawfully operating” under that federal law.

The Wilbur defendants’ convictions were upheld for other periods of the alleged conspiracy. And of more concern is the appearance of state officers acting in federal clothing. As the opinion observed, “a Lieutenant with the Washington State Liquor Control Board who was deputized as a Special Deputy U.S. Marshall, led the search” of the defendants’ retail facility. Although tribal law enforcement also participated in the raids, it is nonetheless noteworthy that reliance by federal statute on state law predicates is problematic in the face of “the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220 (1959).

The apparent ability for state officers to don federal clothing and enforce the state-federal hybrid criminal frameworks on reservations is an even more profound threat to that right. As explicitly contemplated by the Tribal Law and Order Act, if federally deputized non-federal officers are enforcing laws on the Reservation, it should be federally deputized tribal officers doing so. This concern is of course nothing new, as Indian Country braces for and resists the STOP Act, which would essentially import state and big-tobacco interests into Reservation economies under color of federal law. Wolves in sheep’s clothing; Trojan horse; pick your cliché.

Besides the clarity provided by Wilbur, and its limitation on the reach of the CCTA, in the end, a state was still able to enforce its laws on the Reservation, against Reservation Indians.

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.

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.

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.

Tax-Free Inter-Tribal Commerce Upheld By U.S. District Court

On October 18, the U.S. District Court for the Southern District of California issued a preliminary injunction ruling that affirmed the tax-free distribution and discount sale of tribal fuel. A quick overview of the facts: -- The Torres-Martinez Tribe developed the Red Earth Travel Center on tribal trust lands; -- A Yakama-member-owned business, First American Petroleum, provides tax-free fuel to the Red Earth Travel Center; -- The Torres-Martinez Tribe has delegated certain fuel management authority to First American Petroleum for purpose of obtaining tax-free fuel for the Red Earth Travel Center; -- First American Petroleum transports tax-free fuel to Red Earth Travel Center; -- The Torres-Martinez Tribe "sells fuel and convenience stores items at the travel center to help support the tribal economy"; and -- Ultimately, state fuel or travel-related taxes are not imposed on the Torres-Martinez Tribe or First American Petroleum and those tax savings are passed on to non-Indian patrons of Red Earth Travel Center.

Not only did the District Court hold that fuel or travel-related taxes could not be assessed on First American Petroleum (at least preliminarily) but it acknowledged that the Torres-Martinez Tribe could not be sued for tax collection due to its sovereign immunity. In other words, any California right to collect excise taxes on the fuel sold at the Red Earth Travel Center cannot, as a practical matter, be collected.

The Southern District of California's decision currently stands as a wonderful affirmation of tax-free inter-tribal commerce.

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-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."]

Pechanga Has Legal Rights to Protect and Preserve Sacred Mountain Peak

Sacred places are the foundation of all other beliefs and practices because they represent the presence of the sacred in our lives. They properly inform us that we are not larger than nature and that we have responsibilities to the rest of the natural world that transcend our own personal desires ... There probably is not sufficient time for the non-Indian population to understand the meaning of sacred lands . . . We can but hope that . . . protection be afforded these sacred places before the world becomes wholly secular and is destroyed. - Vine Deloria Jr., God is Red

According to the Los Angeles Times and related headlines, a construction company challenges the Pechanga Band of Luiseno Indian's testimony that the proposed site for a massive rock quarry would destroy Pechanga cultural properties, specifically a mountain peak where the Tribe's creation story arose.

Federal law recognizes the Tribe's right to protect and preserve that sacred mountain peak, even though it sits on private lands off of the Pechanga Reservation. Tribes can arguably regulate ''off-reservation activities that have significant effects within the reservation,'' which would include the disturbance or destruction of sacred sites on private lands (Wisconsin v. EPA). Tribes also retain usufructuary rights - i.e., rights to enjoy properties that belong to somebody else - in their off-reservation cultural properties (Minnesota v. Mille Lac Band of Chippewa Indians). Among those rights, tribes have reserved access rights to their cultural properties on non-tribal lands, particularly within historic fishing, hunting and gathering grounds (U.S. v. Washington).

Hopefully these tribal rights, recognized at federal common law, will be also be honored by the Riverside County Planning Commission before the world, or at least Riverside County and the Inland Empire, becomes wholly secular and is destroyed.

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.