President Obama Can Do More For Indian Country

In consideration of recent posts on the successes of President Obama vis-a-vis Indian Country in his first term (for example, here and here), consider a few of Indian Country's trials and tribulations on his watch. 1. Disrespect for Tribal Territorial Autonomy: Agencies within the likes of Justice and Labor, led by the President's appointees, too frequently encroach upon tribal sovereignty and territorial autonomy without appropriate consultation with tribal authorities, as required by Treaties, federal statutes and those agency's own consultation plans and policies. In many respects, it remains business as usual for many federal agencies in terms of entering Indian Country at will to carry out the agency's prerogative. In other words, President Obama's promise of consultation, to federal folks on the ground, is "just words" -- especially given the President's endorsement of the UN Declaration and its "free, prior and informed consent" mandate for nation-state entry onto indigenous lands. I agree with those tribal leaders who insist that the President do more to ensure that "free, prior and informed consent" be integrated into federal policy and action as to issues of tribal implication.

2. Federally Sanctioned State Regulation/Taxation of N2N Commerce: Under guise of the PACT Act, Justice and its ATF have expressly sided with state governments in the enforcement of state civil regulatory laws and tax statutes against tribal governments and entrepreneurs who sell value-generated and other tobacco products from reservation to reservation. Despite the Fed's status as Trustee to Indians, which trust relationship the U.S. does not have to states, the Obama Administration has done so without any meaningful consultation with Indian Country. Even worse, the U.S. threatens to set a precedent of state regulation and taxation of any form of inter-tribal or reservation-to-reservation commerce or trade. Justice and ATF must immediately stand down, in deference to Indian self-sufficiency.

3. President's Unholy Alliance With Big Labor: President Obama struck deals with both Big Labor and Indian Country during his first election. Over the past four years, the Department of Labor has launched un unprecedented assault against Indian Country on behalf of labor unions and employees. In other words, the President has chosen the side of labor interests, which should come as no surprise given his strong predisposition to labor unions. Under banner of the NLRA, most notably, but also OSHA and ERISA, the agency has aggressively challenged tribal self-governance and in the process dishonored notions of tribal territorial authority and federal-tribal consultation. What Labor ultimately threatens to do is ensure that all federal labor laws of so-called general applicability, uniformly govern labor and employment in Indian Country, to the exclusion of tribal self-governance over those areas. Labor should also stand down, in deference to tribal self-governance.

4. Business As Usual With Interior Post-Cobell: It also remains business as usual for the Department of the Interior and BIA as to Indian trust land management, or mismanagement. Indeed, despite so-called "lessons learned" from Cobell, Interior and the BIA have not fundamentally changed the way they carry out the federal trust responsibility to Indian landowners, especially allottees. The $1.9 billion dollar Indian land consolidation, or "buy-back" program, exclaims this point, as Professor David Wilkins observes; instead of exploring new ways to resolve the fractionation epidemic, like Indian estate planning, Interior proposes to band-aid the disease, by creating a $285 million land consolidation/buy-back program, for career BIA employees to administer. All the while, they ignore and do nothing to propose resolution to the real problem of fractionation: non-Indian ownership of undivided interests in allotments. In other words, the more things change (Cobell), the more they stay the same -- and the same will hold true for Cobell-style Indian land controversy.

This critique is not to suggest that the President has not done more for American indigenous people that any President before him; indeed, he has done more than his ever predecessor. Nor is it to suggest naiveté that any President can stand absolutely allegiant to Indian Country in true respect for tribal sovereignty; indeed, no United States President can or ever will. But this critique is to suggest that the Obama Administration can, fundamentally, do more to respect the inherent rights of Native Nations and to resolve historic federal-tribal atrocities, during the President's next four years in the White House.  Yes he can.

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.

Tribal Energy Lawyer-Scholar Ryan Dreveskracht Publishes Tribal Solar Power Article

Ryan Dreveskracht has published his latest law review article on the topic of tribal renewable energy "Economic Development, Native Nations, and Solar Projects," in The American Journal of Economics and Sociology. It is available for free download here.

This article examines the issues surrounding sustainable eco- nomic development in American Indian country via the implementation of solar energy projects. The second section addresses Native American economic development, generally, focusing on practical sovereignty, capable institutions, and cultural match. The third section discusses solar energy projects: the benefits of solar energy when compared to other types of energy production; the ways that these projects will benefit Indian country specifically; and the rationale behind implementing solar energy projects as a means to sustainable economic development in Indian country. The fourth section will briefly discuss the question: Given the advantages of solar energy that the article advocates, why is the uptake in Indian country not already prolific?

In November 2012, he published "Alternative Energy in American Indian Country: Catering to Both Sides of the Coin," in the latest edition of Energy Law Journal.

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.

Fiscal Cliff Bill Affords Indian Country Tax Relief, Suprisingly

As Indianz.com reports, the "fiscal cliff" bill includes several provisions that are designed to stimulate employment and economic opportunities in Indian Country. The Indian Employment Tax Credit, which encourages businesses to hire tribal members and their spouses, expired in December 2011 but is now retroactivated to 2012 and extended until the end of 2013.

The Accelerated Depreciation Incentive, which helps businesses locate on Indian lands, also expired in December 2011 but also received a two-year extension, until the end of 2013.

A production credit for coal facilities that were placed in service in Indian Country before 2009 was also extended until January 2014.

The New Market Tax Credit Program was extended through the end of 2013, with $3.5 billion in tax credits allocated for each year.

At the original request of the U.S. Department of the Interior’s Office of Indian Energy and Economic Development, Gabe Galanda has written a paper that explains the interplay of all of these and other tax advantages in Indian Country, titled, "The Business Case for Private Investment and Development in Indian Country." It is available here.

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.

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.

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.

Washington State Indian Lawyer Gabe Galanda Quoted Re: AUTO v. State Decision

Gabe Galanda was quoted in a WSBA Bar News article, "In Good Conscience: Analyzing the Automotive United Trades Org. v. State of Washington."

The Court’s decision, according to Gabriel Galanda, an enrolled member of the Round Valley Indian Tribes of Mendocino County, California and Seattle Indian law attorney, spells fallout for burgeoning state-tribal relations. “Currently, there are over 200 statetribal tax agreements in effect nationwide, resolving ex ante a variety of potential tax disputes. And Washington state and its tribes are just starting to smooth out the edges of their tax disputes using compacts,” said Galanda. “But now,” he explains, “the Court’s decision permits suits against tribes, essentially, in absentia.

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.

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.

Federal Indian Country Tax Incentives Expire

Amidst partisan gridlock in the Beltway over national tax policy, Congress has allowed several tax incentives designed to attract private development and jobs to Indian Country, to expire. Others will expire unless Congress acts. Indeed, amidst much election-year debate about the American small business sector and middle class, Indian Country's private sector and hope for a robust middle class has been forgotten by Congress.

-- The accelerated depreciation program, which allows manufacturers with facilities in Indian Country to use shorter recovery periods when calculating depreciation deductions for production equipment, has been unavailable since January 1, 2012. Legislation has been introduced that would reauthorize the provision until 2014. S. 3521, 112th Cong. § 211 (2012); H.R. 6240, 112th Cong. § 201 (2012).

-- The Indian Employment Tax Credit, which provides businesses with an incentive to hire individuals who are enrolled members of an Indian tribe (or the spouse of an enrolled member) and who live on or near an Indian reservation, expired on December 31, 2011. Legislation has been introduced that would retroactively extend the program to December 31, 2013. S. 3521, 112th Cong. § 204 (2012).

-- The Low-Income Housing Tax Credit Program, through which tax credits are available for low-income housing projects on homes that that were constructed, rehabilitated or acquired since 1986, including those in Indian Country, are currently available to until only September 30, 2011. Legislation has been introduced to extend the credits to January 1, 2014. S. 3521, 112th Cong. § 203 (2012).

-- The Work Opportunity Tax Credit, a federal tax credit incentive for private-sector businesses that hire individuals from twelve target groups who have consistently faced significant barriers to employment, including certain Indians, expired in 2011. Legislation has been introduced that would extend the WOTC to December 31, 2013. S. 3521, 112th Cong. § 209 (2012).

Indian Country must urge that these tax incentives be extended so that tribal governments can continue to attract private capital and create new jobs for tribal members and neighboring communities. Between now and November any calls to Capitol Hill will likely fall on deaf ears. But come after the election, tribal constituents should call their Delegation to urge that Indian Country's tax and job needs not be forgotten.

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.

Tribe v. Tribe Test For Bankruptcy Code

The oft-debated question whether Tribal casinos are eligible for bankruptcy protection may be a little clearer next month, thanks to a recent case in the U.S. Bankruptcy Court for the Southern District of California. But what makes the case intriguing is the creditor challenging tribal entity eligibility for bankruptcy is another tribe. Bankruptcy watchers were sure there would be a challenge to Santa Ysabel Resort and Casino’s bankruptcy petition. But in a strange turn, the biggest creditor of the Casino’s owner – Iipay Nation of Santa Ysabel – is the Yavapai-Apache Nation. The papers and petition are available via Turtle Talk.

Note to future tribal casino bankruptcy petitioners: be prepared to defend your eligibility under the Code, especially if your largest creditor is an Indian Tribe. Lawyers for the Yavapai-Apache Nation tuned in quickly to the problems with Santa Ysabel’s petition:

Sections 109 and 101 of the Bankruptcy Code govern who may be a bankruptcy debtor. Specifically, § 109(d) limits eligibility for chapter 11 to “a person that may be a debtor under chapter 7 of this title” and a number of other entities not relevant here.

A necessary requirement for chapter 7 eligibility is that an entity fall within the definition of “a person.” 11 U.S.C. § 109(b). Section 101(41) provides that “[t]he term ‘person’ includes individual, partnership, and corporation, but does not include governmental unit.”

Because the Iipay Nation is a “governmental unit,” it cannot be a bankruptcy debtor.

On its voluntary petition the Debtor is listed as "Santa Ysabel Resort and Casino" and for type "Corporation (includes LLC and LLP )" is checked. This is odd since in the Omnibus Declaration the Casino’s GM states "The Debtor is an unincorporated company.” This might be important since, conceivably, although Chapter 11 won't apply to governmental units, including tribes, it could apply to a formally incorporated tribal business.

Many forecasted that tribal entity bankruptcy eligibility would be tested at the bottom of the downturn. But as tribal bankruptcy petitions continue to be filed – the Southeast Alaska Native village corporation Klukwan Inc. filed for bankruptcy this week – perhaps we are seeing tribal debtors testing the waters now, as they realize there is no relief on the horizon and no hope for workouts.

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

Bar Bulletin: Supreme Court Justice Steve Gonzalez Honors Gabe Galanda

Washington State Supreme Court Justice Steve Gonzalez honors the work of Gabe Galanda in the latest King County Bar Association Bar Bulletin. The column, titled "Native Son," is available online here (abbreviated) and in reprint here (full).

In the courtroom, Gabe’s public exploits would be impressive for any lawyer, let alone a 36-year-old. In 2006, he helped spearhead litigation and subsequent settlement among the Lower Elwha Klallam Tribe, State of Washington and City and Port of Port Angeles regarding the Tse-whit-zen Village and ancestral burial ground. He has been at the forefront of state-tribal taxation issues in Washington. Whereas many firms advertise themselves as bet-the-company litigators, Gabe has developed into a bet-the-tribe lawyer. For example, through emergency federal court motion practice, Gabe recently helped a tribe halt the USDA’s attempts to barge solid waste from Hawaii to aboriginal lands in central Washington, where the tribe fishes, hunts and gathers roots and berries to this day, under an 1855 treaty with the United States. His record is clear on at least one thing: he pays little heed to the strictures of formal power structures. When Gabe believes tribal sovereignty or culture is threatened, he will fight – no matter the opponent.