Congress, Protect Native Women NOW

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

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

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

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

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

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

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

Things are coming together for a VAWA reauthorization.

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

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

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

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. His forthcoming work, “Congress' Treatment of The Violence Against Women Act: Adding Insult to Native Womens' Injury” will be published in the University of Miami Race and Social Justice Law Review.  He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Puff, Puff, Tax: I-502 and Washington Indian Country

Washington state’s legalization and regulation of marijuana will be hazy for some time. But the effects of Initiative 502 in Washington Indian Country promises to be cloudier than throughout the rest of the state. Setting aside the social issues that all of Washington will be dealing with as pot becomes a mainstream recreational drug à la tobacco and alcohol, the taxation of pot in Indian country, if it can even be sold on Reservations, promises a host of issues that we’ll be working through well into the next election cycle. Issue No. 1: Tribal Prohibition

Tribes can and increasingly do prohibit marijuana on their reservations. While tribes lack criminal jurisdiction over non-Indians, through their civil authority, tribes could attempt to regulate pot traffic and use because it “threatens or has some direct effect on the political integrity, economic security, or the health and welfare of the tribe.” Montana v. United States, 450 U.S. 544, 566 (1981). If tribes do so, and if the Liquor Control Board’s forthcoming pot-licensing regulations mirror liquor regulations (where local governments can object to licenses), many of these taxation issues will be academic.

Issue No. 2: Federal Law

If Washington tribes follow the state’s lead and decriminalize pot within their jurisdictions, federal interference remains likely. In recent years, tribal flirtation with medical marijuana has garnered unintelligible but angry responses from the Department of Justice. Marijuana remains a controlled substance under federal law, everywhere. But the fact that Indian reservations comprise often largely federal land makes them awkward places to sell drugs that are legal under state law (which doesn’t apply) and illegal under federal law (which is often unenforced).

Issue No. 3: Reservation-based Value

In Washington, as throughout Indian Country, federal law generally bars taxes on products that incorporate “value generated on the reservation,” sold to Indians or non-Indians. See WAC 458-20-192(c). This means that food harvested from Indian lands or prepared at a tribal facility and sold to nonmembers would be untaxed. Id. at (a)(i); cf. Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1044 (9th Cir. 2000) (dicta); California v. Cabazon Band of Mission Indians, 480 U.S. 202, 220 (1987); Indian Country, U.S.A., Inc. v. Oklahoma, 829 F.2d 967, 986 (10th Cir. 1987); Conn. Legal Ruling No 2002-3 (May 29, 2002).

In other words, if a Tribe adds value to a product and sells it on the Reservation, it shouldn’t be taxed. In a vacuum this means that tribally or tribal-member grown pot sold on the Reservation will not be subject to state taxes. If state-regulated pot is actually a feasible business endeavor and not irrelevant because of the black market, untaxed on-Reservation sales could severely undercut off-Reservation sales, which will carry a 25% tax.

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Whatever form Washington Liquor Control Board pot regulations take when they are published, Washington Indian Country should remain vigilant to ensure that its interests are taken into account – whether tribes wish to fight pot on the reservation, or to regulate and tax it.

Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.

The Shifting Sands Of Tribal Internet Gaming

As we barrel toward the election, the outcome of the presidential election promises to affect federal online poker legislation, and therefore tribal online gaming. The 2012 GOP platform calls for the ban of internet poker. And the DOJ opened the door under President Obama’s watch – albeit with as little publicity as possible. Presumably a second Obama term is better for federal poker legislation than a Romney term. That said, a lame duck congressional term could be just the ticket to “sneak” federal online gaming legislation through. With Senator Reid supporting tribal online poker, but opposing “off-reservation gaming,” it could get interesting. Tribes are, and should remain, on high alert. Yesterday the oft-referenced tribal/cardroom consortium California Online Poker Association disbanded due to insufficient progress on state online poker legislation. One could interpret this lack of progress as a reflection that tribes must be featured more prominently in any legislation. Federal or state bills that don’t protect tribal interests will be scrutinized and – hopefully – scuttled. Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.

Good Agreements Make Good Neighbors

The Tacoma News Tribune reported this week that the City of Lakewood and the Nisqually Tribe have entered into a fee for service agreement related to the Tribe’s new convenience store.  The Tribe will reportedly pay $19,000/year for services. The article notes, “Without the agreement, the tribe wasn’t required to pay taxes, but the city also wasn’t on the hook to provide public services.”  This may be half true.  Once in trust, the tribe wouldn’t be liable for certain taxes.  But do cities withhold services from non-Tribal entities who do not pay taxes or refuse to enter into fee-for-service agreements?  Especially when such entities are exempt as a matter of federal law?  Probably not.

Moreover, withholding services based on citizenship of an owner seems problematic.  Regardless, these potential problems illustrate the wisdom of such agreements .  Like good fences, good interlocal agreements make for much better neighbors.

Anthony Broadman is a partner at Galanda Broadman PLLC.  He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.

Gabe Galanda Publishes "Off-Color State Judicial Elections: Voting and Race"

Gabe Galanda published an article, "Off-Color State Judicial Elections: Voting and Race," in this month's King County Bar Association Bar Bulletin. The article is available online here (abbreviated; login required) and in reprint here (full). A couple excerpts:

Because African Americans, Latinos and Native Americans are disproportionately poor, they contribute significantly less money to political campaigns than European Americans. Knowing this reality, candidates, including judicial candidates, generally care less about ethnic minorities’ electoral interests. In turn, racial minorities may feel further marginalized such that they disregard judicial elections altogether and, if or when in court, they disproportionately fear that a judge is more accountable to majority or corporate ideology than to stare decisis or the rule of law. Add finally into this debate the utter lack of elected representation for minorities in most areas of the state. The combined Latino population for 10 counties in Central and Eastern Washington, for example, is a bit higher than 33 percent. Yet, Latinos hold only 4% of those regions’ elective offices and not a single Latino lawyer has ever been elected to the bench in Eastern Washington. The same goes for Native Americans, who have yet to see an Indian judge elected to the state bench anywhere in Washington.

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 serves as a Quinault Nation Court of Appeals Judge and a tribal administrative law judge for other tribes, as well as mediates and arbitrates Indian Country-related disputes. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Can Washington Afford to Re-elect Justice Richard Sanders?

In 2005, former Washington State Supreme Court Justice Richard Sanders, who is again running for the Court this fall, stated: “[N]o private person or group can possibly threaten judicial independence because the independence about which we speak is independence from the executive and legislative branches of government—not independence from the private sector.” “Judge-Election System Works Well,” The Seattle Times, Aug. 9, 2005.

Sanders’ position approaches the slippery slope toward partisan state judicial elections, which the Ninth Circuit Court of Appeals endorsed earlier this month under the auspices of the U.S. Supreme Court's Citizens United decision. Sanders County Republican Committee v. Bullock, No. CV-12-00046 (9th Cir., Sept. 17, 2012).

However, under no circumstance should we allow our state to go down that slide. According to a recent empirical study, when judges are elected in partisan elections, “every dollar of direct contributions from business groups is associated with an increase in the probability that the judges will vote for business litigants.” Michael S. Kang & Joanna Shepherd, “The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions,” 86 N.Y.U. L. Rev. 69 (2011).

Indeed, Justice Sandra Day O’Connor wrote upon her retirement: “When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.” “Take Justice off the Ballot,” The New York Times, May 22, 2010.  Partisan judicial races will only compound this problem.

Even though partisan judicial races are not yet allowed in Washington State, we in the Evergreen State need to now ask ourselves: Should we be worried that if Richard Sanders is re-elected to the State Supreme Court, he would be more accountable to business groups than to the rule of law? I think so.  Put differently, can the average Washingtonian afford to elect him?  I think not.

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 serves as a Quinault Nation Court of Appeals Judge and a tribal administrative law judge for other tribes, as well as mediates and arbitrates Indian Country-related disputes. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda Addresses NAFSA Regarding Tribal Online Lending Precautionary Defense Measures

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

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe assists tribal governments and businesses in all matters of tribal economic development and diversification, including entity formation and related tax strategy. He also helps tribes and tribal businesses and joint ventures withstand attack from federal, state and local government. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda Republishes Tribal Economic Diversification Paper

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

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

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

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe assists tribal governments and businesses in all matters of tribal economic development and diversification, including entity formation and related tax strategy. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Washington Supremes: Attack On Tribal Gas Stations Can Continue

The Washington State Supreme Court held 5-4 today that AUTO’s lawsuit attacking Tribe-State Fuel Tax Agreements can move forward. The majority found that Tribes are not indispensable parties to the lawsuit. Plainly, this means that the suit can proceed and that for now the Washington Automotive United Trades Organization (AUTO) can continue to attack Tribal governments through a lawsuit against the state.

At the core of its lawsuit, AUTO argues that the state, Governor Christine Gregoire, and the state Department of Licensing are violating the Washington Constitution by entering into the fuel compacts with Tribes and that the legislative system surrounding the compacts itself is illegal.

The decision, AUTO I, was decided on procedural grounds. But like most procedural decisions employing balancing tests, judges can rationalize reversal or affirmation. As the majority itself pointed out: “As with all equitable standards, the proper application of CR 19(b) involves a careful exercise of discretion and defies mechanical application.” Which means that judges can justify whatever result they desire.

But the anti-tribal/state majority did make some helpful intermediate findings: First, the tribes are necessary parties. As a matter of civil procedure, parties are necessary when they claim a protected interest in a lawsuit. The majority held that the tribes’ interests in the fuel tax regime are both profound and not adequately represented by the state. If AUTO wins, tribes lose big.

Second, the majority soundly endorsed the continuing sovereign immunity of tribes. Justice Stephens offered the following nuanced discussion, without citation, of tribes’ ability to manage their own immunity from suit:

In fact, an Indian tribe may cabin the extent of its waiver. The greater power to remain utterly immune from suit encompasses the lesser power to consent to suit only on a particular claim or in a particular forum or by a particular party. Sovereign immunity is not an all or nothing proposition, and a narrow waiver does not destroy immunity for all purposes.

So far so good. But on indispensability itself, the Court showed its colors, achieving the result it wanted at the cost of bad legal analysis. Indispensability (after necessity and inability to join have been decided) asks whether the case can proceed “in equity and good conscience” without the absent party in light of four factors.

Analyzing the first factor, prejudice to the tribes, the Court held that the tribes would be severely prejudiced. As the majority noted, “[t]his first factor strongly favors dismissal.” Usually, with immune parties, this is the end of the discussion. This has certainly been the historic approach of Washington Courts.

The second factor is whether the Court can fashion relief to reduce such prejudice. The Court recognized that because AUTO’s solution – suing tribal officials who signed the fuel tax agreements – was as bad as the prejudice, “the second CR 19(b) factor favors dismissal.” The Court did not even really apply the third factor (adequacy of judgment without the tribes) but found that it counseled for dismissal anyway. If you’re keeping score, that’s three factors for dismissal, and zero factors against it.

Relying then completely on the fourth factor, the absence of remedy upon dismissal, the Court held that because “there appears to be no other judicial forum in which plaintiffs can seek relief, the plaintiff lacks an adequate remedy in the event of dismissal,” the case could not be dismissed.

In the end, even though the Court has dismissed similar suits over somewhat similar agreements on indispensability grounds, the state, and indirectly, the tribes, were before the wrong justices. The Court naively noted that, “Sovereign immunity is meant to be raised as a shield by the tribe, not wielded as a sword by the State.” But as is clear in this case, if courts force cases forward with indispensible parties, it’s a shield that immune parties can’t even employ without waiving.

Here is the updated rough chart of Washington State Supreme Court voting tendencies:

In Wright and AUTO, which are the most analogous cases, only justices Madsen, Owens, and Fairhurst have come down on Tribal side of cases (justices González and Stephens were not on the Court for Wright.) The other end of the Court has congealed around both justices Johnson and Justice Chambers, and promises to be consistently resistant to protecting tribal interests.

We’re calling it AUTO Part One because Part Two will come, whether through review to the U.S. Supreme Court or through further litigation in the Washington State Courts. Either way, AUTO promises to carry even more profound risks to the Tribal-State fuel tax regime, and indirectly to the sovereignty of Washington tribes themselves.

Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.

Training Seminar for Tribal and Federal Law Enforcement: A Good First Step

Early last week, the U.S. Department of Justice and the Department of the Interior launched a new training seminar for tribal and federal law enforcement on investigating and prosecuting sexual assault cases on tribal lands.

Topics included law enforcement response, children as victims and witnesses, forensic examinations with adult victims and, most importantly, developing a coordinated and consultative community response to sexual assault.  Such consultation is mandated by various sections of the Tribal Law and Order Act of 2010, Pub. L. No. 111-211, which instructs that that federal law enforcement consult, cooperate, and coordinate with tribal law enforcement.  Some federal agents on the ground in Indian Country, however, have chosen to ignore this mandate.  Hopefully, the training seminar will begin to facilitate the fulfillment of the TLOA.  More than 75 persons, including representative from 23 tribal governments, participated in the three-day training course.