AUTO v. Washington: An Imminent Threat to Washington Tribes’ Sovereignty

Make no mistake, the lawsuit brought by the Washington Automotive United Trades Organization (AUTO) seeks to eviscerate Washington tribes’ intergovernmental sovereign immunity and expose Tribal governments to suit by third parties based on agreements Tribes have entered into with the state. This month, the Supreme Court of the State of Washington agreed to hear the appeal of AUTO v. Washington, or as AUTO calls it, “AUTO v. Governor Gregoire.” A more accurate title might be AUTO v. Washington Indian Country. AUTO is targeting state-Tribal compacts, presumably because Tribal fuel enterprises are competitors. AUTO argues that the state and Governor are violating the Washington Constitution by entering into the fuel compacts with Tribes and that the legislative system surrounding the compacts itself is illegal. Never mind that Washington’s approach to the tribal fuel tax conundrum is the state’s attempt to comply with binding federal law related to taxation in Indian Country.

The state Supreme Court accepted review of the Gray’s Harbor Superior Court order dismissing AUTO’s case based on the indispensability of several Washington Indian Tribes, who are necessary parties to the case. The procedural concept of indispensability requires a case to be dismissed if there is a party who should be a part of the case but cannot be joined due to, for instance, sovereign immunity. It can be a muddy procedural doctrine, but it’s one that often protects Tribal interests, since those interests should not be adjudicated unless Tribal sovereigns agree on the forum.

What can we expect? There are several reasons for Washington Indian Country (and Indian Country at large) to be concerned. First, the state Supreme Court decided to review the case. That decision itself can probably be accurately viewed as negative for Tribes since the trial court’s decision appears to have been correct under the Washington Civil Rules and cases interpreting them.

Second, the core of the anti-Tribal dissent in Wright v. CTEC, the last significant Washington Supreme Court on tribal sovereign immunity, remains on the Court. The Justices who will likely participate in AUTO and voted in Wright, are split 3-3 (Justices Chambers, C. Johnson, and J. Johnson against tribal interests v. Justices Madsen, Owens and Fairhurst for them). The addition of Justices Stephens, and Wiggins, possibly with Justice Alexander’s replacement, make this one tough to handicap.

Add the Court’s recent frenetic approach in State v. Eriksen to the mix (affirmation of conviction; reconsideration; withdrawal of opinion; affirmation of conviction; reconsideration; withdrawal of opinion; reversal) and things become even more muddled. Although Eriksen was not a sovereign immunity case, the Court was forced -- or chose -- to examine tribal sovereignty relative to the state in the criminal context. The Court was again well split, this time with Justices Owens, C. Johnson, and Chambers finding, correctly, that the Lummi Nation’s inherent authority justified the detention of a dangerously intoxicated non-Indian driver.

More recent arrivals Justices Stephens and Wiggins made a majority with Justices Fairhurst, Madsen, and J. Johnson, holding that the Lummi Nation could not stop and detain a drunk driver off the Reservation until non-Tribal cops could arrive. Again, Eriksen shares little with AUTO, but taking a simplistic pro- or anti-tribal snapshot of the court suggests that if Justice Alexander, set for mandatory retirement this year, does not participate in AUTO, the court could split as follows, depending on whether Wright or Eriksen describes the voting lines:

AUTO is far more analogous to Wright, as procedural issues of sovereign immunity are at play. And it’s certainly not fair or accurate at this point to cast any justice as anti- or pro-Tribal based on these two cases. Indeed, outside the Tribal bar Wright and AUTO might be viewed as cases more about civil procedure (Rule 19 for AUTO and the CR 12(b) standard for Wright) than Tribal sovereignty. At least the results of AUTO will provide court-watchers with more data for guessing at results.

Still, it’s clear what AUTO is targeting legally. As set forth clearly in its brief, AUTO argues that (1) it can join Tribes in the suit by suing tribal officials in their official capacity and (2) Tribes waived their sovereign immunity, apparently as to AUTO, by entering into the fuel compacts. While these claims seem patently wrong, they are the very type of procedural formalisms anti-Tribal jurists can hide behind in fashioning novel expansions of the law related to Tribal sovereign immunity. Stay tuned.

Anthony Broadman is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  His practice focuses on company-critical business litigation and representing tribal governments. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or or via galandabroadman.com.

Taking Government-to-Government Relationships to the Bank

After years of fighting the development of a Cowlitz governmental gaming facility tooth and nail – appealing BIA decisions, questioning the honesty of tribal officials, and even arguing that tribal members do not need jobs as much as non-Indians – local governments in Southwest Washington have finally agreed to negotiate with the Cowlitz Indian Tribe in a government-to-government fashion regarding their proposed plans for a casino. Because now the local governments want something. As reported by the Columbian:

[T]he Cowlitz Indian Tribe . . . is in talks to help La Center pay a portion of the tab for the sewer lines to the junction, in exchange for aid moving waste from its 152 acres of land west of I-5, city and tribe officials said. The Cowlitz tribe aims to build a casino on its land.

Six months after the La Center City Council voted to open talks with the tribe, leaders of both bodies said Tuesday that preliminary negotiations are going well and they hope they can forge a mutually beneficial relationship. That includes current talks about sewers, which have been ongoing the past month, and soon-to-come discussions on a new interchange off I-5 that would allow motorists easier access to the tribe’s land.

Such talks are significant considering the council and tribe did not officially speak about the proposed casino for four years after the council banned all dialogue with the tribe in 2007.

“I am quite surprised,” La Center Mayor Jim Irish said of negotiations, “considering we didn’t want to work with them in the past.”

This is nothing new. Slowly, local governments are coming to realize that working with tribal governments to find amicable solutions to mutual problems is much more beneficial than the zero-sum games of yesteryear.

In fact, even cash contributions are not off the table. Earlier this year, in New york, the Seneca Nation contributed over $1 million to a fund to help local government infrastructure; in California, the Yolo Indian Gaming Community Benefit Committee awarded over $200,000 in grants to local agencies affected by tribal gaming; in Michigan, the Saginaw Chippewa Indian Tribe distributed over $2.3 million to nearby schools and local governments; and here in Washington State, as reported by NPR,

Native American tribes . . . are bailing out financially troubled local governments. Most native tribes are still among the poorest communities in the U.S. But in Washington, casino revenue has allowed tribes to make big donations to school districts and even to fund local government positions.

Unlike state and local governments who have no qualms invading the sovereignty of other nations when their coffers run dry, tribal governments are on their own, looking inward for solutions – and finding them. Diversifying business; actively asserting tribal sovereignty; reinvesting in local economies; protecting areas of cultural significance; investing in clean energy; generally reevaluating the playing field – this is what’s going on in Indian country today. As state and local governments flail around aimlessly, wreaking havoc in Indian country and beyond, tribes are showing integrity. And as good neighbors, tribes are willing to lend a helping hand. Indeed, according to Melvin Sheldon, Chairman of the Tulalip Tribes, many tribes in Washington State are now “able to help out other communities. [F]or the tribes that can give . . . it’s a way to say hey, we've made it, and this is who we are.”

Local governments take notice: working with tribal governments is an idea that you can take to the bank.

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.

Indian Law Attorney Anthony Broadman Elected Chair of the Washington State Bar Association Administrative Law Section

Anthony Broadman was elected as Chair of the WSBA Administrative Law Section at its annual meeting yesterday in Seattle. Anthony, a Partner with Galanda Broadman PLLC, a boutique Seattle law firm that he co-founded in 2011 with Gabe Galanda, will serve as Chair of the Section until September 2012. The Administrative Law Section serves the interests of public and privatesector attorneys who work with state, local and tribal government agencies, as well as administrative law judges, hearing officers, review officers and other judicial personnel.

Anthony’s practice focuses on representing tribal governments in jurisdictional and taxation disputes. His scholarship has focused largely on tribal interests and the law of administrative agencies. From 2007 to 2010, Anthony practiced at a medium-sized regional firm, focusing on litigating issues critical to tribes and businesses operating in Indian Country.

Anthony has appeared before Washington state trial courts, federal district courts, and tribal, state and federal administrative bodies. Anthony has diverse trial and litigation experience, ranging from arguing and obtaining an injunction against the U.S. Department of Agriculture in federal court, serving – successfully – as lead trial counsel for a Fortune 500 company in a Washington business dispute, to his jury trial defense of a public employer at the state trial court level. In 2010, Anthony was named a Rising Star by Washington Law & Politics magazine.

Anthony has previously served as Chair-elect, Treasurer, and Secretary of the Washington State Bar Association Administrative Law Section and is a Trustee of the Washington State Bar Association Indian Law Section. He is editor of the Indian Law Newsletter, published by the Indian Law Section and is admitted to practice in Oregon and Washington.

Galanda Broadman PLLC is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters. The lawyers of Galanda Broadman PLLC – Gabe Galanda, Anthony Broadman and Ryan Dreveskracht – earned their law degrees from the University of Arizona College of Law. For additional information about Anthony or Galanda Broadman, visit galandabroadman.com.

Ryan Dreveskracht Joins Galanda Broadman

Ryan Dreveskracht has been hired as an Associate by Galanda Broadman, PLLC, a Seattle-based law firm dedicated to representing American Indian interests. In August, Ryan completed a clerkship with Judge Kathleen Kay of the U.S. District Court for the Western District of Louisiana. Ryan received his L.L.M. in Sustainable International Development from the University of Washington School of Law, and his J.D. from the University of Arizona College of Law, where he also obtained a certificate in Indigenous Peoples Law and Policy. He holds a B.A. in Philosophy and Law, Society, and Justice from the University of Washington, and an A.A. from Lower Columbia College.

Ryan is a prolific legal scholar, having published several works regarding energy development, taxation, jurisdiction, and tribal-federal relations. He is the Managing Editor of the National Lawyer’s Guild Review. Ryan’s recent cutting-edge legal and economic scholarship includes:

• Washington State: Collect Your Own Taxes – That’s Where the Money’s At, The Circle: News From a Native American Perspective, August 15, 2011 • The Shifting Tide of Economic Policy: Will Indian Country Be Left to Drown?, Indian Country Today, April 7, 2011 • Native Nation Economic Development via the Implementation of Solar Projects: How to Make it Work, 68 Washington & Lee Law Review 27 (2011) • Tribal Court Jurisdiction Stripping and Native Nation Economies: A Trip Down the Rabbit Hole, 68 National Lawyers Guild Review 65 (2011) • The Impact of Digital Technology on Indigenous Peoples, in Robert A. Hershey, EcoLiterateLaw: Globalization and the Transformation of Cultures and Humanity 114 (2010)

Galanda Broadman is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters.

Whither Hot Pursuit?: Eriksen's Silver lining

On September 1, 2011, the Washington State Supreme Court issued what seems, at first glance, to be a striking blow to the tribal police power. In State v. Eriksen, No. 80653–5, 2011 WL 3849504 (Wash. Sep 01, 2011), the Court ruled quite simply that Tribal police officers do not have the authority to stop and detain suspects off of the Reservation:

The inherent sovereign power [to stop a non-Indian driver on a public road within the reservation and detain him until state officers arrive] does not logically extend beyond reservation boundaries.   The State is correct that preventing tribal police from stopping and detaining drivers off the reservation would “undercut the Tribe's ability to enforce tribal law” by encouraging drivers to race for the reservation border and escape detention. . . . While this is troubling on a policy level, the concept of territorial jurisdiction necessarily limits any sovereign’s ability to fully enforce its laws.

Id. at *3.  Using the example of an adjacent state’s authority to do the same, the Court then cited to State v. Barker, 25 P.3d 423 (Wash. 2001), where it held that:

Oregon’s ability to enforce its traffic code was undercut when we held that an Oregon officer could not stop and detain an offender who crossed the state border.  That impediment to enforcement alone did not mean that Oregon’s sovereignty was compromised.  Rather, the limitation on Oregon’s authority to enforce its laws flowed necessarily from Oregon’s own geographic boundaries.

Id. at *4.

Eriksen had a very odd procedural posture.  In 2009, the Court approved the use of off-Reservation Tribal police power in these circumstances, holding that, based upon the “inherent power of [tribal] self-governance, which includes the power to prescribe and enforce internal criminal laws,” tribal governments have the authority “to enforce [their] laws by continuing the ‘fresh pursuit’ of suspects off the reservation and then detaining these suspects until authorities with jurisdiction arrive.”  State v. Eriksen, 216 P.3d 382, 387, 393 (Wash 2009).  The appellant then moved for reconsideration, and in 2010 the Court again held that tribal governments possess the “sovereign authority [to] detain . . . non–Indian offenders who violate traffic laws until state authorities can assume custody.”  State v. Eriksen, 241 P.3d 399, 403 (Wash. 2010) (en banc).  The plaintiff then moved to reconsider a second time, which resulted in the immediate case overruling the other two.

Professor Fletcher rightly asks in his post on Turtle Talk, “[f]irst it was 9-0, then 6-3, and now 6-3 the other way.  What happened?”  What did happen?  Or, more importantly, what does this ruling mean for Washington State Tribes?

The unfortunate consequence of this ruling, as noted by one of the dissents, is that it gives incentive for anybody being pursued by Tribal police to make a hazardous run for the boarder.

However, upon further appraisal, the decision has its upsides too.  First, it shows that the Washington State Supreme Court is willing to entertain a true government-to-government relationship with tribes when it comes to the Tribal police power.  The discussion of Oregon’s police power was not happenstance.  Just as “the limitation on Oregon’s authority to enforce its laws flowed necessarily from Oregon’s own geographic boundaries,” Washington State does not have the authority to cross into Oregon and enforce its laws.  It follows, then, that the same is true on the Reservation.  Implicitly, Eriksen stands for the proposition – indeed, a chestnut rule that has lately been ignored by some state agencies – that Washington State agencies do not have any authority to cross into the Reservation in a law enforcement capacity.  Although in recent years some courts have attempted to whittle away at this rule, the Court’s opinion in Eriksen exhibits an eagerness to honor it.

Second, Eriksen provokes the necessity of expanding the authority of Tribal police in order to fill gaps in the State’s current crime control regime.  Particularly important here, litigation wise, was that the State and the tribe were working together.  The State argued that the tribes do have the power to enforce law outside of the Reservation.  Clearly, tribal jurisdiction in this instance is something that everyone (aside from the defendant) wanted.

Notably, Eriksen comes on the heels of the Oregon legislature passing a law that gives Tribal police the power lacking under Washington’s new judicially-derived rule.  SB-412, signed into law on July 22, 2011, modifies Oregon’s statutory definition of “police officer” to hinge on training, rather than the personal judgments of local sheriffs.  Under this law, Tribal police have the same authority as other Oregon police – on and off of the Reservation, and in-between.

Given the odd procedural history of the suit, one cannot help but wonder if the Oregon law isn’t the answer to the “what happened” question posed by Professor Fletcher.  More importantly, one can only hope that the Washington State legislature views the decision in this light. As it currently stands, Wash. Rev. Code Ann. § 10.92.020 does allow that “[a] tribal police officer recognized and authorized to act as a general authority Washington peace officer under this section has the same powers as any other general authority Washington peace officer to enforce state laws in Washington, including the power to make arrests for violations of state laws.”  That power is limited, however, in that it “coextensive with the exterior boundaries of the reservation, except that an officer commissioned under this section may act . . . beyond the exterior boundaries of the reservation” only:

(1) Upon the prior written consent of the [state] sheriff or chief of police . . . ; (2) In response to an emergency involving an immediate threat to human life or property; (3) In response to a request for assistance pursuant to a mutual law enforcement assistance agreement with the [state]; (4) When the officer is transporting a prisoner; (5) When the officer is executing an arrest warrant or search warrant; or (6) When the officer is in fresh pursuit . . . .

Id. at § 10.93.070; see also generally Laurie Reynolds, Intergovernmental Cooperation, Metropolitan Equity and the New Regionalism, 78 Wash L. Rev. 93, 120 n.108 (2003).  Further, because the accreditation process is left up to the judgments of local sheriffs, rather than on the basis of the officer training, only the Swinomish Police Department has obtained Washington State accreditation under the current law.

If anything, in Eriksen the Washington State Supreme Court has signaled that the current system of tribal/state policing does not work.  Working with tribal governments to foster a mutually beneficial crime control system?  In a manner that respects tribal sovereignty?  Could the Washington State Supreme Court be signaling an endorsement of these (not so) novel ideas?  I hope so.

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.

Tribes, Beware of the Federal Bankruptcy Court

The Bankruptcy Court for the District of New Mexico held this week that tribal sovereign immunity does not protect the Jicarilla Apache Nation from the impact of a Chapter 11 plan. In Re Platinum oil Properties, LLC, Case No. 09-10832 (D.NM. Bankr. Aug. 12, 2011). Because the Bankruptcy Code abrogates tribal sovereign immunity, according to the court, tribes have to abide by a reorganization plan. But weirdly, the Jicarilla Tribe does not appear to have made any argument based on its sovereign immunity. Instead, in its motion for summary judgment, the Tribe argued that the debtor’s claims interfered with the tribe’s sovereign ability to control and regulate its jurisdiction. Somebody took the word “sovereign” and ran with it, sticking his or her neck out far more than necessary and reaching the Bankruptcy Code’s definition of governmental unit, on which sovereign immunity abrogation hinges. In other words, the decision is a mess.

What can we learn from this case? Beware when using the term “sovereign.” Ensure, as the Jicarilla Tribe admirably attempted to do, that the court understands even the most elemental facets of tribal sovereignty. Here, that means distinguishing between a tribe’s broad power to regulate and control its jurisdiction, Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 140 (1982), as opposed to a tribe’s narrow ability to avoid being sued. Kiowa Tribe of Oklahoma v. Mfg. Tech., Inc., 523 U.S. 751, 754 (1998).

Tribes to should explore how and when they can govern their own affairs in the bankruptcy context. Clearly when the matter is left to federal courts, tribes will often lose.

Anthony Broadman is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  His practice focuses on company-critical business litigation and representing tribal governments. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or or via galandabroadman.com.

Federal Indian Consultation Right Extends to Tribal Members

Indian Country Today Media Network reports that Interior Sets Cobell Land Consolidation Consultations. This is a critical recognition by the United States that the federal Indian consultation right, meaning the substantive duty of the United States to consult with Indians about matters of tribal implication, extends to tribal members. That is especially true in regard to individual Indian-owned lands and other trust assets.

Pursuant to the Indian Land consolidation Act, and the Department Interior's Indian Land Consolidation Plan enacted pursuant to that statute: “Interior may acquire land from individual Indian owners to consolidate fractional ownership interests and thereby ‘lessen the number of owners.’” Cobell v. Norton, 225 F.R.D. 41, 44 (D.D.C. 2004). Sales of allotted land interests are governed by provisions set out in 25 C.F.R. § 152. “The common feature of all these kinds of Part 152 sales is that they require communication between individual Indian trust-land owners and agents of Interior.” Cobell, 225 F.R.D. at 45.

The fiduciary duty to individual Indians includes consultation, as “[c]onsultations . . . can roughly be understood as communication by Indian beneficiaries of their desires to the federal trustees who make ultimate determinations about what happens with the lands Indians occupy.” Derek C. Haskew, Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or Another Badge of Shame?, 24 AM. IND. L. REV. 21, 31 (2000). This duty is triggered when an agency decision impacts the “value, use, or enjoyment” of Indian trust assets. U.S. DEP’T OF THE INTERIOR, PROTECTION OF INDIAN TRUST RESOURCES PROCEDURES MANUAL 13 (1996).

The federal Indian consultation right vis-a-vis tribal governments is alive and well, especially at common law. The right vis-a-vis tribal members is in only its nascent stage, legally speaking.

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.

Montana Supreme Court Affirms Tribal Authority Over Probate of Reservation Fee Lands

The Great Falls Tribune reports: "Supreme Court ruling strengthens sovereignty in Indian Country."

The Montana Supreme Court has overturned a nearly 40-year-old precedent that has long been used by lower courts to determine jurisdiction in cases that stem from within tribal reservation borders.

In a 36-page ruling issued last month, the high court ruled unanimously that tribal courts have exclusive jurisdiction over the probate of 'fee lands'owned by tribal members within the boundaries of reservations.

Thankfully, the U.S. Supreme Court's decision in Plains Commerce did not dictate a different result, namely state court authority over the probate of tribal member-owned fee lands within reservation boundaries.

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.

Gabe Galanda: "The State Tax Man Cometh"

The Indian Country Today Media Network has published a column by Gabe Galanda, "The State Taxman Cometh."

[T]ribal governments and their business partners must redouble their efforts to prevent taxation by the state and its little sibling. Indian leaders should reevaluate the terms of their revenue allocation plans and business partnerships, and related tax laws, to ensure tribal intramural and external dealings are insulated from non-tribal taxation. Tribal laws should be amended and business deals restructured as necessary. Policies of tribal taxation, or not, should also be reexamined, insofar as tribal excise taxation of various reservation-based economic activities will create factors that militate against state or local taxation.

In 2011, the state taxman cometh. Indian country, be prepared.

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.

More on the Preservation of Indian Law on the Washington Bar Exam

According to draft minutes from the Washington State Bar Association Board of Governors meeting in Olympia, on January 27, Indian law was specifically preserved as an examination topic notwithstanding the adoption of the Uniform Bar Exam (UBE).

Governor Etengoff moved that the WSBA adopt as the Washington State Bar Exam the UBE, consisting of the Multistate Bar Exam-multiple choice exam (MBE), the Multistate Performance Test (MPT), and the Multistate Essay Exam (MEE), along with a Washington Educational Component Test (WECT), which will include Indian Law and other subjects particular to Washington State, and which consists of an online/course materials and online multiple choice exam, and also adopt the Multistate Professional Responsibility Exam (MPRE) as Washington’s’ Professional responsibility exam.

Loren moved to amend his motion to be effective as of the summer exam 2013.  Motion to amend passed unanimously with a vote of 13-0-0.  He later stated that he is agreeable to implementation happening sooner if that is a possibility.

Governor Leishman moved to amend Governor Etengoff’s motion to provisionally include the Missouri-style exam as WSBA’s test of Washington state competency in the summer exam 2013, but direct staff to evaluate alternatives for testing on Washington state competency.  Motion to amend passed 11-2-0.  Governors Moore and Palace opposed.

Governor Etengoff’s original motion, as amended, passed 11-0-2.  Governors Buri and Flood abstained.  Governor Lee was not present for the votes on the Washington State Bar Exam.

In addition to strengthening state-tribal relations in Washington State, the Board's decision further recognizes the vitality of Indian law in Washington's legal system and civil society.

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.