Streaming Podcast: Gabe Galanda Offers Indian Gaming Forecast Via 113th Congress

Today, Gabe Galanda spoke on the CEM Audio Edge's Gaming Law News live show, regarding gaming issues from a tribal perspective and what the 113th Congress might or might not do to address and resolve these issues. The show gathers attorneys, policymakers and commentators to discuss crucial legislation affecting state and federal jurisdictions around the world. A few excerpts:

As a tribal advocate, I do not believe that tribal i-gaming should be regulated by states. First and foremost, to the extent tribal i-gaming is confined to Indian Country, as a matter of tribal sovereignty, states should have no role in its regulation. That said, I do generally agree that for sake of integrity of game play, dual regulation makes sense; meaning tribal and federal regulation, as we have with Class II Indian gaming.

States should also not play a regulatory role in i-gaming because unlike the situation in 1988, where generally speaking tribes did not have the regulatory experience that states like Nevada and New Jersey had then and as such, tribes needed help in gaming regulation, today tribes are very sophisticated in gaming regulation. In fact, tribal regulators have proven themselves more sophisticated than state regulators in many instances.

Moreover, states will use any Congressionally delegated regulatory role to extort taxes or revenue-sharing from i-gaming tribes, which is patently acceptable.

Based on Congress’s pace to date, it’s a safe bet that we’re heading toward state-by-state regulation of Internet gaming – tribes will have to fit into the cracks that such regulations create. . . . It will be a tribe by tribe process, in which tribes attempt to comply with both the requirements of IGRA and their compacts.

A vote on the [Akaka Carcieri fix] bill did not happen in 2012. U.S. Senators from Rhode Island and Northern California have done everything in their power to stymie a Carcieri fix, and successfully so as of yet. As long as they continue to do so, a Carcieri fix may not even get a vote in 2013.

The result of this [Patchak] decision is that a party claiming harm to property nearby proposed trust land has standing under the APA to bring a lawsuit. This creates considerable risk for casino developers because the statute of limitations under the APA is considerably longer than that of the QTA – creating much more time that a party has to challenge the DOI's trust transaction.

Two days after the fiscal cliff debacle, I would note that the Congress delivered some unexpected good news to Indian Country, in the form of tax relief. Although not gaming specific – of course Indian gaming is per se tax exempt – Congress passed a number of tax fixes that are advantageous to tribal governments engaged in economic development or diversification efforts.

Looking further into 2013, it is impossible to predict how the anemically bipartisan Congress will behave relative to i-gaming in general, or any matter of Indian gaming, be it TOGA or a Carcieri-fix. Generally speaking, I do not predict good things to come Indian Country via the 113th Congress. Any legalized inter-state i-gaming will somehow erode tribal sovereignty. . . . As such, the status quo, at least on i-gaming, might not be such a bad thing.

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 and diversification, including entity formation and related tax strategy. He also helps tribes and tribal businesses and joint ventures withstand attack from federal, state and local government. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

A Look Back: Internet Gaming and "Indian Lands"

Anthony Broadman's materials from the 10th Annual Northwest Gaming Law Summit held last week in Seattle are available.  With the scrapping this week of the Reid-Kyl Internet poker bill, the outlook for online gaming in general, and tribal online gaming specifically, is as cloudy as ever.  These materials examine the approach taken by the NIGC and courts in the early 2000's when Tribes first began exploring regulated online gaming.  The regulatory scheme now in place as a result of these cases will have to be addressed in any federal legislation regarding Internet gaming.

Congress, Protect Native Women NOW

The Violence Against Women Act (“VAWA”) and its protections for Native American women must be immediately sent to President Obama’s desk for signature.  For sake of protecting all American women, including the First American women, the matter should not be delayed another day.  The VAWA Reauthorization must be passed by Congress NOW. Thirty-five years ago, in Oliphant v. Suquamish Indian Tribe (1978), the Supreme Court stripped tribal governments of the power to prosecute non-Indians who enter Indian Country and commit violence against Indian women.  A criminal jurisdictional void has existed in tribal communities ever since.  Last April, the Senate passed S. 1925, a VAWA Reauthorization bill that would finally restore tribal criminal jurisdiction over the perpetrators of these attacks.  The bill was passed with bipartisan support.

In May, however, the Republican-controlled House introduced its version of the VAWA, H.R. 4970, which omitted the Senate’s tribal provisions.  On May 16, the House passed H.R. 4970, without including the tribal jurisdiction provisions.  The bill passed strictly on party lines.

Since then, the VAWA reauthorization has lingered.  And, apparently, it is not due to partisan politics at this time.  This year’s elections saw women voters re-elect Barack Obama for a second term, send more women than ever before to Congress, and deliver a powerful message to the GOP that they need to do a better job of appealing to women.

On December 3rd, as a result of that American female mandate, Republican House Members Darrell Issa, Tom Cole, Mike Simpson, John Kline and Patrick McHenry changed their position on tribal jurisdiction over non-Indian abusers in Indian Country; they introduced H.R. 6625, a bill that includes the tribal jurisdiction provision, provided that a defendant can remove the case to federal court if he believes his rights have been violated by a tribal government.

On December 6th, Senate Judiciary Chairman Patrick Leahy confirmed that all issues have been resolved to get the VAWA reauthorization bill passed, except for the tribal jurisdiction provision.  On December 11, ten House Republicans broke ranks to sign a letter urging House Speaker John Boehner and House Majority Leader Eric Cantor to take up and pass a bill including the provisions of S. 1925.

Just today, December 18, all twelve Democratic Senate women joined together to call on the women of the House Republican Conference to work with their leadership and finally pass a VAWA with tribal protections.  The letter notes that S. 1925 “is widely supported by law enforcement officials, victims’ advocate groups, and the public at large.”  Indeed, the letter goes on, “until now, this bill has been among the most broadly supported measures considered in both the House and Senate and has only become more so over time. . . . Support for the legislation’s renewal in 2000 [garnered] a 95-0 vote in the Senate, and a 371-1 vote in the House.  And an even stronger consensus emerged in 2005, with unanimous approval in the Senate, and a 415-4 vote in the House.”

The letter then reminds House Republicans of the directive set by American women voters: “In 2013 and beyond, the women of the House and Senate are primed to play an even larger role in guiding national policy and we should do so by working across party lines. . . . All women should be protected and introducing into this legislation the notion that some women subject to violence deserve to be protected while others do not is something we believe we can all agree is unacceptable.  We should not pick and choose which victims of abuse to help and which to ignore.”

Things are coming together for a VAWA reauthorization.

It appears that Rep. Cantor’s unwavering stance on the issue is all that stands in the way.  According to the Huffington Post, Vice President Joe Biden, sponsor of the original 1994 VAWA, has been in meetings with Rep. Cantor to get a deal done.  But “Cantor is refusing to accept any added protections for Native American women that would give expanded jurisdiction to tribes.”  Rep. Cantor needs to stand down.

The 112th Congress will end on January 3, 2013.  And unless the VAWA reauthorization bill is passed with the tribal provisions intact, there will be no VAWA reauthorization.  According to the White House, the President will veto any VAWA reauthorization bill that does not include protections for Indian Country domestic violence victims.

The time is now for VAWA reauthorization.  Native women cannot wait any longer.  Please tell House Republicans to urge Rep. Cantor to allow a VAWA that includes tribal protections, here.  Majority Leader Cantor can also be reached at 202.225.2815.

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. His forthcoming work, “Congress' Treatment of The Violence Against Women Act: Adding Insult to Native Womens' Injury” will be published in the University of Miami Race and Social Justice Law Review.  He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Kevin Washburn, Tracie Stevens, Ernie Stevens to Address Gaming Law Summit in Seattle

This Thursday and Friday, December 13 and 14, United States and Native Nations leaders will meet to discuss various emerging legal, regulatory, political and economic issues impacting the Indian gaming industry, at the 10^th Annual Gaming Law Summit in Seattle.

“Now in our tenth year, we are thrilled to attract some of the most influential Indian gaming authorities from Washington, DC and from Indian Country to the Summit,” said conference co-chair Gabe Galanda, an Indian lawyer and partner at Galanda Broadman in Seattle.  “We are proud that the Summit has become the most authoritative gaming law educational seminar in the country.”

This year’s lineup of speakers include:

• U.S. Department of the Interior Assistant Secretary of Indian Affairs Kevin Washburn
• National Indian Gaming Commission Chairwoman Tracie Stevens
• National Indian Gaming Association Chairman Ernie Stevens
• U.S. Department of the Interior Deputy Assistant Secretary of Indian Affairs Lawrence Roberts
• Washington Indian Gaming Association Chairman Ron Allen
• Cowlitz Tribal Council Vice Chairman Phil Harju
• Tulalip Tribal Board of Directors Secretary Glen Gobin
• San Manuel Tribal Gaming Commissioner Norm DesRosiers

  Those hot topics that will be discussed include:

• iGaming in Indian Country
• Fee-to-Trust Transactions for Gaming Development
• The U.S. Supreme Court’s recent Patchak decision
• Indian gaming commercial financing trends amidst the Great Recession

Seattle Tribal Lawyer Ryan Dreveskracht Publishes Indian Alternative Energy Article

Ryan Dreveskracht has published "Alternative Energy in American Indian Country: Catering to Both Sides of the Coin," in the latest edition of Energy Law Journal.

Given the bipartisan Congressional support for tribal energy development in Indian country, one would assume that tribal governments and their citizens would be playing a large role in making this come to fruition. But, as noted by Senator Daniel K. Akaka (D-HI), “[o]ur existing laws are falling short of fully enabling tribes to develop their natural resources.”

Has anyone stopped to ask, though, whether tribal governments and their citizens even want to develop alternative energies on their lands? A peripheral reading of recent media accounts would suggest that tribes throughout the Nation are voicing active opposition to alternative energy projects.

This article looks at both sides of the renewable energy “coin” in relation to American Indian country. On the one side, at least according to some recent media depictions, it appears that tribal governments and their citizens are adamantly opposed to any energy development on their lands. All told, however, this couldn’t be further from the truth. Section A of this article will explain that tribes merely seek a seat at the table when decisions are made regarding developments that will adversely affect their lands or areas of cultural significance, and why this is important. Indeed, contrary to being opposed to alternative energy development, Tribes are very actively seeking to develop their lands, and to do so in a manner that is consistent with their cultures and traditions. But, large-scale alternative energy projects are virtually absent from Indian country. Thus, Section B of this article will discuss what is hindering these projects from coming to fruition. Finally, Section C of the article will discuss what Congress is – and is not – doing regarding the two sides of the coin.

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.

Gabe Galanda Addresses NAFSA Regarding Tribal Online Lending Precautionary Defense Measures

Today, Gabe Galanda addressed the Native American Financial Services Association (NAFSA), in a presentation titled, "A Quick History Lesson: Foundational Elements of Tribal Sovereignty, Tribal Self-Governance and the Government to Government Mandate." He delivered his remarks (slides here) at the Tribal Government Online Lending Symposium Presented by the Online Lending Association and NAFSA. Gabe specifically discussed notions of inherent sovereignty and preemptive consultation as means of countervailing federal and state attacks against tribal online lending activities.

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 and diversification, including entity formation and related tax strategy. He also helps tribes and tribal businesses and joint ventures withstand attack from federal, state and local government. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda Republishes Tribal Economic Diversification Paper

Gabe Galanda published an updated version of his paper, "The Business Case for Private Investmentand Development in Indian Country," at the 12th Annual Native Nations Law Symposium that was held on the Kickapoo Reservation in Kansas on September 14th. He added new topics such as several federal Indian Country tax incentives that Congress has allowed to expire, as well as the HEARTH Act. He originally published the paper at RES 2011, at the request of the U.S. Department of the Interior's Office of Indian Energy and Economic Development.

[W]hile state and local governments struggle to make ends meet [amidst the Great Recession], tribal governments have largely avoided economic catastrophe. Fueled by the $26 billion Indian gaming industry, Indian Country is generally faring much better than neighboring local economies since the recession took hold in 2008. Ironically, not having property tax bases to begin with, most tribal governmental revenues have remained stable. Many tribes are avoiding complacency; they recognize that the Indian gaming industry will not sustain its exponential growth over the last decade. The inevitable legalization of Internet gaming and, in some jurisdictions, commercial land-based gaming, will eventually put a major dent in Indian Country’s bottom line. As such, tribal governments are more than ever looking to diversify their economies.

Where tribes bring a staggering array tangibles like land and location, and intangibles like sovereignty, relaxed red tape and tax exemption, their corporate business partners bring proven industry expertise and new capital to the reservation. Whether through a joint venture between a tribe and a non-Indian business, a tribal land lease to a non-tribal company, or a tax credit investment – all of which are contemplated below – there are an abundance of very advantageous reservation development deals for Corporate America to symbiotically explore with tribes at this time in our nation’s history. The time is now for tribes to leverage these advantages to create new economic and job opportunities on their reservations.

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 and diversification, including entity formation and related tax strategy. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

State-Tribal Consultation Right Crystallizing

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

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

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

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe is currently writing a piece for Indian Country Today, tentatively titled, "Developing and Enforcing the State-Tribal Consultation Right." He can be reached at 206.691.3631 or gabe@galandabroadman.com.

Anthony Broadman Speaks the "Truths" on Tribal Onling Gaming

Anthony Broadman publishes his latest article on tribal online gaming -- The Arrival: Tribal Gaming, Nevada and the Future of Online Play in this month's edition of Casino Enterprise Magazine.

The long-awaited arrival of regulated Nevada and Delaware Internet gaming is bringing some uncertainty to the gaming industry. How will it affect traditional casinos? Will new customers be driven to existing brands? Will current market share be driven into the ether? We will know soon enough, as Nevada, and then Delaware, now have “legalized” forms of Internet gaming. You can bet other states will follow suit. Even with these uncertainties, tribal gaming enterprises can rely on a few truths about the direction of online play.

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

Are Hopes for the HEARTH Act Too High?

With much tribal and media fanfare, on Monday the President signed into law the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act, Pub. L. No. 112-151 (2012).  It was signed less than two weeks after the Senate passed the Act by unanimous consent.  According to the House Report on the bill:

Private investment within Indian reservations . . . is about as scarce as it is in any nation where ownership of property is highly restricted by national governments. Investors cannot afford to wait the months or years it may take for BIA approval of a simple lease executed with a tribe. . . . Fortunately, there are exceptions. In reservations where tribes have wisely contracted with the BIA to manage their own lands, productivity and health of the property dramatically improve.

As it stands, under 25 U.S.C. § 415 each and every lease of a tribe’s lands must still undergo federal review and approval by the Secretary of the Interior under a sprawling, burdensome set of regulations.  Approval is also subject to the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., along with the usual delays and court controversies that protract the process.  It is not unheard of for several years to pass before Indian land can be leased, if at all.  Thus, a tribe who wants to govern its trust lands under free market principles cannot, in practice, do so.

Needless to say, the HEARTH Act has great expectations. The Act seeks to change the current scheme of Indian land leasing by – commonsensically – allowing tribes to lease their own land. (The “Homeownership” moniker to the Act is actually misleading; the HEARTH Act potentially applies to all non-mineral tribal land leases, not just those pertaining to Indian homesteads). The Act will give tribal governments the discretion to lease restricted lands for business, agricultural, public, religious, educational, recreational, or residential purposes without the approval of the Secretary of the Interior. Tribes are able to do so with a primary term of 25 years, and up to two renewal terms of 25 years each (or a primary term of up 75 years if the lease is for residential, recreational, religious or educational purposes).

The Act has been lauded as something that will “open the door to badly needed housing development on reservations, as well as wind and solar energy projects that tribes have been eager to launch.”  Senator John Barrasso (R-WY) says that it will once and for all “remove bureaucratic red tape and clear the way for Indian tribes to pursue homeownership and economic development opportunities”; Interior Secretary Ken Salazar says the Act “will have a real impact for individuals and families who want to own a home or build a business – generating investment, new jobs and revenues”; National Congress of American Indians President Jefferson Keel echoes the applaud, stating that the Act “will streamline business development and housing development and create jobs on reservations across the country.”

Although a good first step – a very good first step, with much potential – I am not as sold that the HEARTH Act will have such immediate effects, if it will have any effect at all.  First, before any tribal government can approve a lease, the Secretary must approve the tribal regulations under which those leases are executed (and mining leases will still require the Secretary's approval).  Second, before the Secretary can approve those tribal regulations, the tribe must have implemented an environmental review process – a “tribal,” or “mini” NEPA –that identifies and evaluates any significant effects a proposed lease may have on the environment and allows public comment on those effects.

One need only look to the energy arena to determine the future of the HEARTH Act. In 2005, Congress enacted 25 U.S.C. § 3504, which included provisions for implementation of a Tribal Energy Resource Agreement (“TERA”).  Essentially, the law operates much like the HEARTH Act.  It (1) allows tribes to enter into a master agreement (the TERA) with the Secretary of the Interior, which then (2) grants the tribe the ability to enter into leases and to grant rights of way across tribal lands without Secretarial approval.

To date, however, not one tribe has entered into a TERA.  For many tribes, the cost simply outweighs the benefits – TERAs allow tribes the leeway to skip Secretarial approval, “but only on terms dictated by the federal government rather than on the tribes’ own terms.”  Like the HEARTH Act, the TERA requires that tribes create a NEPA-like environmental review process and comply “with all applicable environmental laws.”  And tribes simply do not have the resources necessary to fulfill the host of NEPA requirements, which impose an extremely heavy burden on tribal governments to demonstrate that they have the requisite expertise, experience, laws, and administrative structures in place to assume the responsibility of a TERA.  According to Indian law scholar Judith V. Royster, “[f]ew tribes at present have the in-house geologists, engineers, hydrologists, and other experts, or the financial wherewithal to hire or train them,” in order to provide the tribe with the capacity necessary to obtain Secretarial approval under the TERA regulations.

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

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

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.