Gabe Galanda Stumps Against Interior's Land Buy Back; Serves as Professor in Residence

This week, Gabe Galanda visited the University of Arizona College of Law in Tucson for a speech at the 2nd Annual Tribal Lands Conference, and a Professorship in Residence at the Indigenous Peoples Law & Policy Program. Gabe's speech at the Conference, which was themed "The Cobell Settlement Land Buy-Back Program for Tribal Nations," was titled: "The Perils of Indian Law Buy Back." He explained that "while Interior’s plan disclaims any facilitation of forced sales under 25 U.S.C. 2204(a), the $1.55 Billion in 'buy back' monies will catalyze controversial intra-tribal forced sales."

Gabe further explained how any such forced sale could violate various federal laws, including the Fifth Amendment of the U.S. Constitution and the United States' trust fiduciary duty at common law, as well as international human rights law, including Articles 1 and 10 of the United Nations Declaration on the Rights of Indigenous Peoples and Article 11 of the Rights of Man and of the Citizen. His slides are available here, and his prior published commentaries are here.

During his Professorship in Residence, Gabe engaged indigenous law students during a program moderated by Dean Marc Miller, in the development series called "A Conversation With...," which features prominent law school alumni. He also delivered a lecture to Professor Ray Austin's class titled, "Tribal Economic Development: Looking Through the Prism of Indian Taxation & Sovereign Immunity."

In his lecture, Gabe explained very recent developments in federal Indian law regarding the powers of tribal taxation, sovereign immunity and territorial authority. His slides are available here.

Gabriel “Gabe” Galanda is the Managing Partner of 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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Law360 Quotes Gabe Galanda Re: Big Lagoon "Curveball"

Leading law blog, Law360, quoted Gabe Galanda at length regarding the Ninth Circuit's unprecedented decision in Big Lagoon, in "Tribal Casinos Face New Threats After 9th Circ. Curveball" (subscription required).

"The decision will allow states and anti-tribal groups to somehow collaterally attack other tribal projects that they find undesirable, many years — if not decades — after the fact," said Gabriel S. Galanda of
 Galanda Broadman PLLC....

"This decision will certainly further chill tribal lending for any new tribal economic development effort as well," Galanda said....

"This decision makes it even harder for tribal governments to greenfield Indian casinos, and that was already a near-impossible proposition due to the Supreme Court's recent anti-tribal decisions in Carcieri and Patchak," Galanda said.

Gabriel “Gabe” Galanda is the Managing Partner of 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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda To Stump On Perils Of Interior's Buy Back Program

On January 27, 2013, Gabe Galanda will warn about "The Perils of Indian Law 'Buy Back'" at the 2nd Annual Tribal Lands Conference at the University of Arizona College of Law in Tucson. Gabe has been a vocal critical of the program insofar as it might lead to individual Indian landowners' lands being taken forcibly or without just compensation. Gabe's nationally published commentaries since 2012 are here, here, here, here, and here, and his comments to McLatchy DC's News Bureau are here.

Indian landowners with commercially or otherwise desirable trust land interests, beware. Indeed, as Gabe worried and warned in 2012:

Above all, how will the United States protect against any improper federal-tribal governmental allotted land consolidation – meaning one in which tribal members do not want to lose their family’s land forever? Or in which tribal members have their own plans to overcome fractionation challenges and utilize their family’s land for cultural or economic purposes? Or, on the flipside, one in which impoverished tribal members will sell their land interests for less than fair market value merely in order to survive? What about the situation where the tribe with “a controlling level of interest” seeks 100% ownership of the land for some unjust reason? Indeed, as noted by the Village Earth blog, Interior’s proposal “does not address the concerns of many individual land owners who feel that programs like this take advantage of people’s desperation, forever divesting them of their lands for a small one-time payment, and transferring them to the control of Tribal Governments who may not use them for the benefit of their people as a whole.”

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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda Publishes on Legal History of Washington Tribal-State Relations

Gabe Galanda has published an article, "Galanda Washington Tribal-State Relations Bar Bulletin," in this month's King County Bar Bulletin, which is themed, "polarity." Dedicating the piece "to those Washington Indians who fought the fish wars and to the tribal lawyers who won the Boldt Decision," he recaps modern Indian legal history in Washington and concludes with criticism that the Washington Supreme Court's three most recent Indian law decisions are regressive.

Polarity accurately describes the historic legal relationship between the State of Washington and those Tribal Governments indigenous to our state. Tribal sovereignty, i.e., “the right of reservation Indians to make their own laws and be ruled by them,” has always been antipodal to state sovereignty as a matter of Anglo-American jurisprudence. So much so, that by the late 1800s nascent states were deemed the Tribes’ “deadliest enemies” by none other than the U.S. Supreme Court. And over the ensuing century, tribal and state governments waged a zero-sum battle over who would regulate Indian Country.

But today, in what is the era of Indian self-determination as a matter of both federal policy and tribal behavior, tribal/state opposition is waning. As noted by leading Indian law scholar, Professor Matthew T. 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.

Washington tribal/state relations and the new political relationship between our state’s sovereigns are indeed evolving. Still, based on the Washington Supreme Court’s three most recent three Indian law decisions, more progress is required to achieve tribal/state congruity throughout official state policy. In particular, the increasingly cooperative relationship between the Tribes and State must be better appreciated when the Court next evaluates regulatory power or adjudicatory jurisdiction in Washington Indian Country.

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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda To Again Co-Chair Northwest Gaming Law Summit

On Thursday-Friday, December 12 and 13, United States, Washington State and Native Nations leaders will meet to discuss various emerging legal, regulatory, political and economic issues impacting the Indian gaming industry, at the 11th Annual Northwest Gaming Law Summit in Seattle. “Just as Indian gaming has grown exponentially over the last decade, so has the Summit,” said conference co-chair Gabe Galanda, an Indian lawyer and partner at Galanda Broadman in Seattle. “We are proud that we have become the most authoritative gaming law educational seminar in the country.” This year’s lineup of speakers include:

• New National Indian Gaming Commission Chairman Jonodev Chaudhuri • National Indian Gaming Commissioner Daniel Little • New Washington State Gambling Commission Executive Director David Trujillo • New Washington State Gambling Commission Commissioner Christopher Stearns • Washington Indian Gaming Association Chairman Ron Allen • Cowlitz Tribal Council Vice Chairman Phil Harju • Tulalip Tribal Board of Directors Secretary Glen Gobin

Those hot topics that will be discussed include:

• iGaming in Indian Country • Social Gaming • Fee-to-Trust Transactions for Gaming Development • The U.S. Supreme Court’s pending Bay Mills case • Indian gaming commercial financing trends amidst the Great Recession

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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Law360 Quotes Gabe Galanda Re Bay Mills Imbroglio

Gabe Galanda is featured along with several leading Indian lawyers and scholars in a Law360 article about Bay Mills, just days prior to oral argument before the Supreme Court. In "Bay Mills Hinges On High Court's Loyalty To Precedent," Gabe is quoted as follows:

Several Indian law experts, however, do not believe the Bay Mills tribe — which was urged to drop its case to avoid the Supreme Court — stands a good chance, and they are concerned that the current court will use the case as an opportunity to veer sharply from the Kiowa ruling.

That's because in the Kiowa decision, the justices affirmed the tribal sovereign immunity doctrine, but they also had some less-than-encouraging words about the doctrine and asked Congress to look into making changes at the lawmaking level. Congress held several hearings after the ruling, but ultimately decided to take no action, experts note.

"In the Kiowa case, a prior Supreme Court made it very clear that they were uncomfortable about tribal sovereign immunity. ... I believe the court will now take occasion to do what it wanted to do in the late 1990s and abrogate tribal sovereign immunity," said Gabriel S. Galanda 
of Galanda Broadman PLLC.

*** [O]thers, however, are hoping that the high court ultimately rules that the state can find remedies under the Indian Gaming Regulatory Act. The National Indian Gaming Commission, however, has so far declined to step in with a closure order that would officially shut down the Bay Mills casino for operating illegally on nontribal land. And the U.S. Department of Justice has likewise declined to step in and provide a remedy for Michigan.

"The absence of a federal remedy from the NIGC or DOJ to date will cause the justices to create the remedy for the state of Michigan, and it will be a remedy Indian country will not like," Galanda said, adding the case threatens to upset the delicate balance between state and tribal sovereign immunity. ***

As the case moves to arguments, attorneys rooting for both sides will be watching to see how broadly the sovereign immunity arguments are introduced, according to Rand. And while many believe, as Galanda points out, that the facts are not sympathetic for Indian country and that the tribe will be hard-pressed to win its case, other hold out hope.

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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Interior's Indian Land Buy-Back Plan: More Sketchy By the Day

Consider the highlights--or lowlights--of Interior's latest "plan" for Indian land "buy back." First, "the program will exclude reservations east of the Mississippi and in Alaska" according to Interior's appraisers. In addition, Western states with high concentrations of Indian lands, most notably California, are not on Interior's priority list for federal buy back funding.

Second, according to Interior's latest plan, "once fair market value determinations have been made, the Department will mail offer packages to individuals with ownership interests in those valued tracts and seek to acquire those interests that individuals are willing to sell."

In other words, Interior expresses no intention of consulting in person with individual Indian landowners to ensure they understand the proposed purchase and sale transaction. That despite a clear ruling in Cobell v. Norton, 225 F.R.D. 41, 45 (D.D.C. 2004) that such sales "require communication between individual Indian trust-land owners and agents of Interior.” Mass mailings are simply not the communication or consultation that is required to cause Indians to fully understand the consequences of signing boilerplate papers that will cause them to cede their ancestral lands.

Third, nowhere in the plan does Interior "respond to concerns about the conflict of interest it will face during either voluntary or forced sale—meaning how it will simultaneously fulfill its trust responsibility to both a tribal government buyer and a tribal member seller."

Indeed: "On the issue of fair market value alone, that conflict cannot be avoided. Even a willing member seller will want the purchase price to be as high as possible, while both the tribal buyer and Interior will want the price to be lower, in the interest of spreading as far as possible the $1.55 billion allocated for land consolidation." So much for the federal trust responsibility owed to tribal members, or the so-called "lessons learned" from Cobell.

Finally, Interior continues to feign that "the Buy-Back Program is strictly voluntary." It is not. As Buried towards the end of the plan is this cryptic disclaimer: "Under the terms of the Settlement and the Claims Resolution Act of 2010, all sales are voluntary...The Department has no control over the prerogatives of sovereign tribal nations to exercise whatever rights they may have regarding the purchase of land outside of the confines of the Buy-Back Program."

In more meaningful words, under 25 U.S.C. 2204 tribes have the right to force the sale of their members' land interests. "Make no mistake about it: while Interior’s plan now disclaims that it will facilitate forced sales under 25 U.S.C. 2204, the buy back program will catalyze controversial intra-tribal forced sales." It is sketchy to feign or suggest that it won't.

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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Nez Perce v. Megaloads: Another Treaty-Based Consultation Victory

On September 12, an Idaho federal district court stopped massive industrial equipment headed for the Alberta Tar Sands -- now commonly known as the Megaloads -- from traversing Nez Perce Treaty-protected ceded lands. The federal court's decision affirms the power of Indian Treaties and the intrinsic consultation requirements of those sacred pacts. Article III of the Treaty with the Nez Perces of 1855 reserved for Nez Perce Indians the “right of taking fish at all usual and accustomed places” and “the privilege of hunting . . . upon open and unclaimed land.” As the court explained: "Although the Nez Perce ceded the lands now encompassing the Nez Perce Clearwater National Forests to the United States, 'they did not relinquish rights to hunt, fish, and gather, or to practice traditional religious and cultural ceremonies on these ancestral homelands.'”

Critically, even though Article III of the Nez Perce Treaty does not mention the word "consultation," the federal court ruled that: The duty of the Forest Service to conduct a consultation after finding that the mega-loads might affect cultural and intrinsic values is commanded by Treaty rights" – "there is no discretion to refuse consultation." And "[w]hen the duty to consult runs to a Tribe, the federal agency generally must consult with the Tribe before taking the action at issue." Indeed, "meaningful consultation takes place “typically before undertaking a course of action” (emphasis in original).

The Nez Perce Megaloads decision is at least the second recent decision from the federal courts, affirming Treaty-based consultation requirements over ceded or off-reservation lands, even though the Treaty Articles at issue do not mention the word "consultation." In 2010, a Washington State federal court enjoined the United States from allowing a private garbage contractor from importing municipal waste from the Hawaiian Islands into the Yakama Nation's ceded lands and fishing, hunting and gathering areas. That court ruled that there were "serious questions about whether Defendants adequately consulted with the Yakama Nation as required by [Article III] of the Yakama Treaty of 1855," even though that Treaty Article, too, does not expressly require consultation.

Under international legal norms, "the treaty obligation to consult that is intrinsic in any bilateral agreement between nations." G. Galanda, "The Federal Indian Consultation Right: No Paper Tiger," Indian Country Today; see Restatement (Third) Foreign Relations Law of the United States §§ 325, 337 (1986).  When will the United States begin to truly honor this norm?  Indeed, Nez Perce v. Megaloads, like the Yakama Hawaiian garbage case and the Quechan solar power case, illustrate how even the "pro-tribal" Obama Administration will flout federal Indian consultation rights in order to cut red tape for, and otherwise fast-track, pet projects like Tar Sands.

In fact, when the political and economic stakes are high, and the choice must be made between siding with either mega-corporations, or Indians, the United States and its President will always -- ALWAYS -- side with almighty corporate interests, and ignore guaranteed Indian rights. That paradigm is nothing new to Indian Country; it has been happening for centuries. What is new is the United States talking out of both sides of its mouth about tribal consultation.

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.

Reason.com Features Ryan Dreveskracht's Exposition Of Fed-States-Big Tobacco Unholy Alliance

Ryan Dreveskracht's exposition in Native American Times about the Master Settlement Agreement, was quoted at length in a recent reason.com blog post, "Tax-Hungry State Officials Revive Indian Wars Over Cigarettes."

As part of an interesting analysis of the cigarette tax standoff, Ryan D. Dreveskracht summarizes a major tax collecting approach for Native American Times:

In 1998, the Attorneys General of 46 states, five U.S. territories, and the District of Columbia settled various legal actions involving antitrust, product liability, and consumer protection claims against the nation’s four largest tobacco companies. (In the early years of the Bush Administration, the Department of Justice decided not to pursue claims against tobacco manufacturers for harm caused in Indian country). The states wanted billions of dollars, and were likely right to demand it. The tobacco companies, however, anticipated that they would have to substantially raise cigarette prices to pay for their financial obligations to the states. They also knew that by raising their prices, other nonparticipating companies would have a competitive price advantage.

In settling the suits, the major tobacco companies got a sweetheart deal. As part of the settlement agreement, states agreed to enact and “diligently enforce” escrow statutes that “effectively and fully neutralize[d]” competition from nonparticipating companies. These statutes impose financial obligations on non-participating companies by requiring them to make escrow payments based on the number of tax-stamped cigarettes sold in a participating state. Participating tobacco companies are not subject to these payments. Nonparticipating companies, however – companies that have never been sued or found culpable for conduct giving rise to liability – are required to make the payments.

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.

Round Valley Lawyer Gabe Galanda Quoted By McLatchy Re Interior's Buy Back Scheme

Gabe Galanda is quoted at length in a nationally syndicated article by McLatchy Newspapers regarding Interior's nascent land buy back program.

“There’s no love for California Indian Country,” said Gabriel Galanda, a Seattle lawyer and a member of the Round Valley Indian Tribes of Mendocino County, Calif. He called the program “a disaster” in the making. . . Galanda, the Seattle lawyer, questioned why the same government agency that mismanaged Indian trust land should now be trusted to provide a fix. “Funding the agency to correct the problem they caused is not a prudent use of taxpayer dollars,” he said.

The article observes: "critics are skeptical, saying that federal law will still allow tribes to ultimately force unwilling minority landowners to sell once they’ve acquired 51 percent ownership of any individual parcel." Galanda is among those critics, having published several commentaries about the buy back program:

When Bureau of Indian Affairs Director Mike Black was pressed, he was forced to admit that the buy back program is specifically designed to bring tribes into at least a controlling 51 percent interest in fractionated allotted or restricted lands—at which time a tribe could then, on its own volition and with its own funding, force the sale of the remaining 49 percent or other minority interest. Make no mistake about it: while Interior’s plan now disclaims that it will facilitate forced sales under 25 U.S.C. 2204, the buy back program will catalyze controversial intra-tribal forced sales.

Consider Gabe's exchange with Director Black at a recent consultation session hosted by Interior in Seattle:

MR. GALANDA: What if one single undivided 18 interest holder objects to the sale? Does it then become an 19 involuntary sale that's ineligible for acquisition? 20 MR. BLACK: No. Every individual interest is 21 based on a willing seller. 22 MR. GALANDA: Okay. 23 MR. BLACK: So if -- you know, if there's five -- 24 well, let's just say there's ten interest holders within a 25 parcel or an allotment, nine of them want to sell and the one doesn't, he doesn't have to sell or she doesn't have to 2 sell. It does not preclude from going out and purchasing 3 the other nine interests. 4 MR. GALANDA: So the tribe would then have the 5 controlling 90 percent interest and the dissident would 6 still have their 10 percent? 7 MR. BLACK: Yes. 8 MR. GALANDA: But could the tribe then force the 9 sale on that 10 percent interest once it's acquired 10 90 percent interest? 11 MR. BLACK: It wouldn't be necessarily under this 12 program. But there is some language within AIPRA that I 13 don't know the specifics of, that there is some ability for 14 tribes to do some purchase under AIPRA. 15 MR. GALANDA: So the idea is let's bring the 16 tribes into a controlling level of interest voluntarily, but 17 then the tribe could cause an involuntary sale of the 18 minority interest, in terms; is that correct? 19 MR. BLACK: I would rather turn that over to our 20 solicitors for a specific question, but there are 21 opportunities to do that, yes. I don't believe any tribes 22 really exercise that today, that I'm aware of, but this -- 23 there are options out there available. 24 MR. GALANDA: Well, I think you understand, 25 though, there's two pending forced sales within this region right now. So I just think it's something that we should be 2 aware of. I don't think it's a healthy presumption to 3 suggest that this will be done 100 percent voluntarily.

Interior should get honest and admit that the current buy back program is not "entirely voluntary"--it will catalyze the forced sale of tribal member-owned lands, by their own tribes. Heeding the so-called "lessons of Cobell," Interior must be more forthright and proactive about such obvious forthcoming legal entanglements. Oh what a tangled web we weave.

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.