Tribal Lawyer Ryan Dreveskracht To Address Nisqually Community Re Indian Voting Rights

On Tuesday, November 5, Ryan Dreveskracht will deliver a speech to the Nisqually Tribe regarding Indian Voting Rights. Ryan will speak from his forthcoming law review article, tentatively titled,"Reenfranchising the Native Vote After Shelby County v. Holder." In that paper, he argues that Section 5 of the federal Voting Rights Act "is both an appropriate and necessary measure to prevent ongoing voting discrimination targeting Native American citizens, and concludes that "Congress not only has the power to compel preapproval of state voting legislation that is applicable to Indian Country, but it has an obligation to do so."

Ryan's speech will occut in the Nisqually Library, starting at 5:30 PM.

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.

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.

2nd Circuit Gets Stupid With IGRA

In a horrid opinion in Mashantucket Pequot v. Town of Ledyard, the Second Circuit scrutinized IGRA's tax preemption provision, 25 U.S.C. 2710(d)(4), which provides:

nothing in this section shall be interpreted as conferring upon a State or any of its political subdivisions authority to impose any tax, fee, charge, or other assessment upon an Indian tribe or upon any other person or entity authorized by an Indian tribe to engage in a class III activity.

Astonishingly, the Second Circuit held that this provision somehow does not operate to outlaw state taxes on Class III slot machine vendors, meaning on "entit[ies] authorized by an Indian tribe to engage in a class III activity." The panel reasoned that “IGRA does not directly preempt, by its text of by plain implication. . . . IGRA addresses state taxation, without prohibiting taxes." Wow.

Indeed, in the way of judicial realism, the Second Circuit overlooked contrary interpretations of 2710(d)(4) by its sister circuits. Consider, for example, what panels in Cabazon II (9th Cir. 1994) and Rincon (9th Cir. 2010), have said about that statute over the last two decades:

Cabazon II: “IGRA preempts the State of California from taxing offtrack betting activities on tribal lands.” Rincon: “[N]othing in IGRA can reasonably be construed as conferring on states the power to impose anything [fees or taxes]; all the states are empowered to do is negotiate.” Id.: “Under 2710(d)(4), it is not only ‘taxes’ that are precluded, it is any ‘tax, fee, charge, or other assessment.’”

We've now arguably got a circuit split. Until that--heaven forbid--might ever be resolved on high, gaming tribes in the West should be protected from the state tax man under cover of Cabazon II and Rincon. Those mega-gaming tribes in the Northeast, maybe not so much.

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.

Silver Linings to Wash. Supreme Court's Playbook in State v. Clark

Today the Washington State Supreme Court ruled against a Colville tribal member and pro-tribal friends of the court in State v. Clark. But, in the case --which Gabe Galanda co-argued, on behalf of the ACLU--there are stark silver linings that affirm tribal sovereignty, especially in Washington Indian Country and Treaty territory. The case concerned whether a county search warrant, obtained and executed by city police without any attempt to involve the tribal police or court, lacked authority of law, since it authorized the search of a tribal member defendant’s home situated on reservation trust land. The Supreme Court affirmed the defendant's "conviction for theft because the trial court properly denied his motion to suppress evidence gathered on tribal trust land without a tribal warrant."

But the silver linings lie in the Court's reasoning:

Clark asks us to recognize the Colville Tribes' interest by adopting the test used by the Supreme Court of Idaho in Matthews, which measures the infringement of tribal sovereignty by looking to whether the State ignored governing tribal procedures while serving criminal process. Ifthe State did so, then under Matthews the State undermined tribal self-government. The material facts of Matthews are quite similar to those of Hicks: state police searched tribal property for an off-reservation crime. Hicks' holding has superseded Matthews for this particular factual scenario. However, we agree that Matthews serves as the starting point for searches of reservation lands where Hicks is distinguishable, such as where the crime occurs on reservation land over which the State has jurisdiction. Consequently, we hold that the State does not infringe tribal sovereignty by searching reservation lands unless it disregards tribal procedures governing the execution of state criminal process.

What this means is that state law enforcement must follow tribal procedures governing the execution of state criminal process, before searching reservation lands. In Clark, the Court found the Colville tribe's procedure wanting because it "does not govern the way the State executes its own process. Indeed, the tribal warrant provision does not guarantee that the State could execute its warrant as the tribal court could refuse to issue a tribal warrant."

Still, if tribes promulgate clear codified procedures for the execution of state process on reservation lands (18 U.S.C. 1151), states and state police must honor those procedures. And crucially, that is notwithstanding Nevada v. Hicks. This is the starkest silver lining from Clark.

The other silver lining lies in footnote 9 to the last page of the opinion: "Clark does not argue that any treaty provision creates governing procedures for executing a state search warrant . . . We do not foreclose the possibility that the State would infringe tribal sovereignty by disregarding governing procedures created by such provisions with our opinion today. See State ex rel. Merrill v. Turtle, 413 F.2d 683, 686 (9th Cir. 1969)."  In other words, Treaty tribes, such as all Stevens Treaty signatories, have an even stronger basis to force state police to honor codified tribal procedures that govern state process on reservation lands, especially through inherent territorial exclusion rights. That, too, is notwithstanding Hicks, which did not involve Treaty rights.

So although the decision was a tribal defeat, there are silver linings to the Washington Supreme Court's playbook in Clark.

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 sovereignty and self-governance, especially in legal opposition to federal, state and local government encroachment.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.  His argument in Clark can be watched on TVW (at 35:49).

Carolina Supreme Court Goes Rogue: Immediately Orders Baby Veronica Removed

Little has changed since the Indian Child Welfare Act (“ICWA”) was enacted more than thirty years ago to address what Congressional testimony in 1974 revealed to be “the most tragic aspect of Indian life” — that is, the “wholesale removal of Indian children from their homes . . .” and their placement with non-Indian adoptive parents and foster homes.  Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32 (1989). Last month the U.S. Supreme Court issued a decision diminishing the applicability of the ICWA, twisting the meaning of “continued custody” to find the statute inapplicable to prevent the removal of an Indian child from her biological father’s custody and home.  This was the tragic culmination of a long-running child-custody battle, widely reported in the press as the “Baby Veronica case.”

Baby Veronica’s father is a citizen of the Cherokee Nation and U.S. veteran who mistakenly signed away his parental rights on the eve of his deployment to war.  But when he discovered that an adoption of his child was at stake, he quickly moved to assert his inherent rights as a father so that he could raise his own daughter.  The Supreme Court’s holding quickly resulted in the summary eradication of an Indian father’s parental rights.

Beyond that tragedy, the Supreme Court’s decision threatens the efficacy of the statute enacted to address what the Court recalcitrantly acknowledged were “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.”

In a move showing that little if any real progress for Indian children and Indian Country as a whole has been made since the ICWA’s enactment, the South Carolina Supreme Court went a large and destructive step beyond the High Court’s mandate in the Baby Veronica case.  Because the  Court’s order was limited to a finding that the ICWA was inapplicable in this case, the lower courts should still be able to consider other laws potentially protecting the biological father’s rights, or at least ensuring that any further order is in Baby Veronica’s best interests.  In an order  handed down on July 17, however, the South Carolina Supreme Court demanded “prompt entry of an order approving and finalizing Adoptive Couple’s adoption of Baby Girl.”

As two of the five South Carolina Supreme Court Justices declared in their dissent, the South Carolina Supreme Court goes far beyond the U.S. Supreme Court’s opinion in immediately terminating the Indian father’s parental rights without regard to any other applicable laws — or what is in Baby Veronica’s best interests:

[n]othing in the [U.S. Supreme Court’s] majority opinion suggests, much less mandates, that this Court is authorized to reject the jurisdiction of other courts based upon a 1989 case deciding jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), nor obligated to order that the adoption of this child by Adoptive Parents be immediately approved and finalized.  Further, the majority orders the immediate transfer of the child, no longer an infant or toddler, upon the filing of the family court’s adoption order, without regard to whether such an abrupt transfer would be in the child’s best interest.

This heart-wrenching case highlights not only the fact that little has changed for the better since the ICWA’s enactment; it also serves as a call to action for Indian Country.  Those who care about the welfare of Indian children in America must raise their voices and demand Congress and the President act to strengthen the ICWA.  Because as we see with Baby Veronica and her father’s case, this statute has clearly failed to stop the assaults on Indian families as it was intended to do in 1978.

Only time will tell if Adoptive Couple v. Baby Girl will make matters worse for Indian families and children.  I suspect it will.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and joe@galandbroadman.com.  

ATNI Resolves to Protect American Indigenous Prisoners' Religious Freedoms

This week, the Affiliated Tribes of Northwest Indians (ATNI) resolved that it "denounces and opposes any inappropriate or illegal federal, state or local government restriction upon incarcerated American Indigenous Peoples’ inherent rights to believe, express, and exercise traditional indigenous religion, including any such restriction that does not advance the shared penological goals of federal, state and American indigenous governments or that was not preceded by meaningful tribal consultation with affected ATNI tribes or other American indigenous governments." ATNI further resolved to denounce and oppose "the California Department of Corrections and Rehabilitation’s 'emergency' amendments to Section 3190(b) of the California Code of Regulations, Title 15, Crime Prevention and Corrections, and related regulatory restrictions regarding American Indigenous Peoples’ religious properties and sweatlodge ceremonies, because those state regulations violate federal, state and international law, were promulgated without any consultation with American indigenous governments, and are contrary to the penological interest of rehabilitating incarcerated American Indigenous Peoples."

To read ATNI Resolution #13-63, click here.

Ryan Dreveskracht Rips State of Montana's Anti-Bison Bills

Seattle tribal lawyer Ryan Dreveskracht lambasted a series of tribal bison-related bills introduced in the Montana state legislature as "another attack on Buffalo Country," according to an interview with Indian Country Today Media Network. That outlet also published his paper, "Montana’s Bison Bills: Another Attack On Buffalo Country."

Together the four pieces of tribal bison-related legislation, all introduced by Republicans, constituted “another attack on Buffalo Country,” said Indian law expert Ryan D. Dreveskracht in a recent interview with Indian Country Today Media Network. . . .

“Undoubtedly, the tribes that originally inhabited these lands had the right to manage, maintain, and hunt bison,” Dreveskracht said. “Congress has not clearly and unambiguously divested that right. The tribes’ exclusive authority to regulate on-reservation wildlife is thus derived [from] the retained inherent sovereignty over its tribal territory.”

He added that legally Montana is obligated to “protect [the tribes’] source of food and commerce” throughout the state, meaning both within Montana Indian country and beyond, on and off the reservation. Although the bills were touted as necessary “to protect domestic livestock from contracting brucellosis [for] the sake of public safety” in the name of conservation, Dreveskracht said, they would have in effect destroyed an entire indigenous culture and economy, nullifying rights that are engrained in treaty. These treaties, referred to in the U.S. Constitution as “the supreme Law of the Land, ” serve to “exempt the Indians’ preserved rights from like state regulation,” Dreveskracht said.

Further, he added, they impose an affirmative obligation on the state to assure that reserved resource is maintained in a manner that gives meaning to the tribes’ reserved right.

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.

Gabe Galanda Stumps On "Modern Federal Indian Tax Implications for Tribal Economic Development"

On March 13, Gabe Galanda spoke at the RES 2013 conference in Las Vegas, regarding tribal tax issues.  Here is his presentation Modern Federal Indian Tax Implications for Tribal Economic Development.  He addresses the following recent Indian tax developments:

Fiscal Cliff: Indian Country Tax Incentives Restored

Federal Leasing Regulations: Indian Country Tax Relief

PACT Act: Awful Precedent for State Taxation of N2N Commerce

Trending: State Taxation of Indian Country’s “Fringes”

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 sovereignty and self-governance, especially in legal opposition to federal, state and local government encroachment.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Washington Tribal Lawyer Gabe Galanda to Discuss Indian Tax Issues (Twice) at RES 2013

Gabe Galanda has been invited by the National Center for American Indian Enterprise Development (NCAIED) to speak on two Indian taxation panels at RES 2013 in Las Vegas, Nevada, the premier tribal economic development and diversification conference in the country.  He will speak on March 13.

Track 4: TAXATION, Part 1 – IRS Tax Implications on Tribes, Tribal Enterprises and Tribal members. Tribes and intertribal organizations have formed the Intertribal Organization Tax Initiative (IOTI) to carry out united tribal action to confront new forms of intrusion into the sovereign affairs of tribes by federal and state taxation policies. Tribal governments have had to defend against expansive Internal Revenue Service (IRS) examinations and audits of tribal government services to members. Tribal governmental and economic development programs have been hindered by the more burdensome federal tax requirements imposed on tribes than on state governments. Meanwhile, states continue to seek mechanisms to obtain state revenues from tribal commerce. This break-out session, featuring representatives of the IOTI Tax Initiative, will report on key tax policy developments and what to expect in the coming year, including pending IRS guidelines on the General Welfare exclusion and tribal proposals for tax reform legislation as well as other tax policy efforts that have been undertaken to defend tribal sovereignty, strengthen nation-building and stimulate economic development.

Moderator: Susan Masten – Vice-Chairwoman, Yurok Tribe and Vice-Chairwoman Board of Directors, National Center for American Indian Enterprise Development Kitcki Carroll – Executive Director, United South & Eastern Tribes, Inc. F. Michael Willis, Partner, Hobbs Straus Dean & Walker, LLP. Gabriel Galanda – Partner, Galanda Broadman, PLLC Dante Desiderio – Executive Director, Native American Finance Officers Association

Track 4: TAXATION, Part 2 – Tribal Tax Revenue Opportunities for Tribes. Moderator: Larry Kinley CEO, Lummi Commercial Company and Member Board of Directors, National Center for American Indian Enterprise Development Gabriel Galanda – Partner, Galanda Broadman, PLLC Robert Porter – Senior Counsel, SNR Denton Robert Whitener – Owner, The Whitener Group, LLC

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 sovereignty and self-governance, especially in legal opposition to federal, state and local government encroachment.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.