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

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

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

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

Gabriel “Gabe” Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Good Tidings We Bring To You

Pictured: Tribal lawyers Anthony Broadman, Ryan Dreveskracht, Joe Sexton, Scott Wheat (Choctaw), Gabe Galanda (Round Valley)

Gabe Galanda To Again Co-Chair Northwest Gaming Law Summit

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

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

Those hot topics that will be discussed include:

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

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

The NIGC Can Fix Bay Mills

By now, we all knows the risk of Michigan v. Bay Mills Indian Community being decided by the U.S. Supreme Court this winter. The Indian gaming sky is literally falling. What began as a fight over whether Bay Mills could open an off-reservation casino on Indian lands-claims property, has devolved into a direct attack on (1) tribal sovereign immunity and (2) tribal sovereignty over gaming. NCAI has wisely urged the NIGC to moot this case by issuing a closure order for the off-reservation casino. But before the issue came to a head, a few years ago, a lawyer within the NIGC opined that the agency lacked jurisdiction over – incredibly – this Indian gaming operation because it is not on Indian lands. This 2010 letter has apparently given the NIGC all the cover it needs to completely punt the issue. In doing so, the NIGC is failing to achieve its core mission of protecting Indian gaming as a means of tribal economic development.

Ideally, the Bay Mills Tribal Gaming Commission will exercise Indian sovereignty as the primary regulator of the casino and issue its own closure order, mooting this issue. But if its lacks that foresight or resolve, the NIGC should close the casino. And it can. Plainly, the NIGC is authorized to temporarily close “an Indian game” when a tribe violates IGRA, its own laws, a compact, or its gaming ordinance. 25 USC § 2713. Indian game is not defined in IGRA. Whatever it means, it does not appear to be limited to games on Indian land. Historically, the NIGC has been either too paternal (CRIT) or too afraid (Bay Mills) when it needs to act in the best interests of governmental gaming. Abdicating the agency’s core responsibility as to Bay Mills is no longer an option. 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.

Being Blunt: Tribes and Washington’s New Pot Regs

Washington State Liquor Control Board’s new proposed rules on marijuana licenses mistake Indian tribes for cities and counties on one hand, and ignore tribes on the other. The silence and misapprehension will lead to problems. Comments on the new regulations are due tomorrow, October 4 with a hearing scheduled for October 9. Washington tribal governments should make their voices heard. • The pot rules should recognize Tribes’ rights to ban or regulate and tax reservation marijuana.

The new pot rules suggest that the state has a role in on-Reservation regulation of marijuana. See WAC 314-55-160. It does not. Pot sales are not liquor traffic, where tribes share regulatory authority with states. Pot is illegal under federal law and may be illegal under certain tribal laws. The notion in the new rules that the State “may” simply “notify” Tribes when someone wishes to sell marijuana on the reservation completely misses the point. Even more problematic, the State “shall” notify cities and counties. The state has no civil regulatory jurisdiction on the Reservation. The new rules should reflect this.

• The pot rules should recognize Tribal sovereignty over taxation if sales are not banned.

Now if Tribes wish to take another tack and legalize the drug (and the federal blind eye to Washington and Colorado legalization might arguably prevent them from treating reservations any differently), Washington should be barred from asserting pot taxes on such “value generated on the reservation,” whether sold to Indians or non-Indians. See WAC 458-20-192(c). Untaxed on-Reservation sales could undercut off-Reservation sales, which will carry a 25% tax. In addition, all the other regulatory constraints on pot sales included in the new rules (e.g. the one hundred mg THC limit) are clearly civil regulatory and have no place on the reservation. Decisions about how and whether to sell reservation pot are for Tribes.

• The pot rules should address intergovernmental agreements related to pot.

If Washington’s burgeoning pot economy takes off, we’re headed for the same types of intergovernmental fights the state has picked with tribes over liquor, tobacco, and fuel. The rules should not shy away from what we all know: Good agreements make good neighbors. To the extent the Washington State Liquor Control Board has the authority, it should welcome the security of intergovernmental agreements related to pot and reflect that goal in its rules.

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.

Galanda Broadman Named Washington Gaming Law Firm Of The Year

Galanda Broadman has been named "Boutique - Gaming Law Firm of the Year in Washington" by Global Law Experts. The award follows several recent honors for Galanda Broadman and its lawyers. Galanda Broadman recently received a prestigious Tier 1 ranking in the 2013 Edition of U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law.

Gabe Galanda was also just named to The Best Lawyers in America in the practice areas of both Gaming Law and Native American Law, for the eighth straight year. He was named a “Difference Maker” by the American Bar Association in November as well. Also, Gabe and Anthony Broadman, as well as firm associate, Ryan Dreveskracht were each honored by Super Lawyers magazine for 2013; Gabe as a Washington "Super Lawyer" and Anthony and Ryan as "Rising Stars."

In December 2012, Lawyers of Color listed the firm in its Big Book of the Best Boutiques, an exclusive, national listing of the top minority law firms in each state. In January 2013, Seattle Business Magazine honored Gabe as one of “the Puget Sound Region’s Best Lawyers for 2013,” in both the arenas of Native American Law and Gaming Law. Last year Corporate INTL magazine named Galanda Broadman as the Boutique winner of the 2013 Corporate Intl Magazine Legal Award for "Gaming Law Firm of the Year in Washington."

Galanda Broadman, “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests.  The firm, with offices in Seattle, Washington and Bend, Oregon, represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in matters of Indian Treaty rights, tribal sovereignty and taxation.

Gabe is an enrolled member of the Round Valley Indian Tribes of California. He currently sits on the National Native American Bar Association (NNABA) Board of Directors, chairing the group’s “Include Indian Law on State Bar Exams” Initiative, and co-chairing its “Increase Natives and Tribal Court Judges in the Judiciary” Initiative. Gabe is a past President of the Northwest Indian Bar Association and past Chair of the Washington State Bar Association (WSBA) Indian Law Section.

Anthony is the immediate past Chair of the WSBA Administrative Law Section, and author of “Administrative Law in Washington Indian Country.”  In September 2012, Anthony was specially honored for his outstanding service as Chair of the Administrative Law Section.  He is a former Trustee of the WSBA Indian Law Section, and also serves as Editor-in-Chief of the Section’s Indian Law Newsletter.

Prior to joining Galanda Broadman, Ryan was a law clerk to the Honorable Kathleen Kay, in the U.S. District Court for the Western District of Louisiana. Ryan has published ten journal and law review articles in 2011-12 alone, on issues like tribal renewable energy, and has served as the Managing Editor for the National Lawyer’s Guild Review since 2010.

Indian Lawyer Gabe Galanda Again Named Among America's Best Lawyers

Gabriel “Gabe” Galanda has been selected by his peers for inclusion in the 2014 edition of The Best Lawyers in America® in the practice areas of Gaming Law and Native American Law, for the eighth consecutive year. Gabe, an enrolled member of the Round Valley Indian Tribes, owns Galanda Broadman, PLLC, a boutique Seattle law firm that he co-founded in 2010. He has now been selected to The Best Lawyers in America® from 2007 to 2014.

Gabe’s practice focuses on complex, multi-party litigation and crisis management, representing tribal governments and businesses. He is skilled at defending tribes and Indian-owned enterprises from legal attacks by local, state and federal governments, and representing plaintiffs and defendants in catastrophic personal injury lawsuits. Gabe also mediates and arbitrates disputes between tribal and non-tribal parties, including personal injury matters and conflicts between tribal and local, state or federal governments, as well as tribal intramural disputes.

Best Lawyers is regarded as the definitive guide to legal excellence in the United States. 

Gabe’s selection to Best Lawyers was based on a peer-review survey, which all told comprises more than 4.9 million confidential evaluations by top attorneys throughout the country.

Galanda Broadman is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters. For additional information about Gabe or Galanda Broadman, visit galandabroadman.com.

How I Learned To Stop Worrying And Love Bracker

Mashantucket Pequot Tribe v. Town of Ledyard (2d Cir.), handed down last month, has confirmed what we all know about Bracker balancing: when applied, Tribes usually lose. In fact it seems every time courts apply the Bracker balancing test, it becomes erroneously less possible to pass.  See Ute Mountain Ute Tribe v. Rodriguez, 660 F.3d 1177 (10th Cir. 2011); Barona Band of Mission Indians v. Yee, 528 F.3d 1184 (9th Cir. 2008).  By way of background, Bracker essentially preempts taxes on non-Indians in Indian Country where the interests of the state are outweighed by the interests of the Tribe and the federal government, with the latter usually being borne out through federal regulation.  White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).

In Ledyard, the Mashantucket Pequot Tribe sued a neighboring town to bar Connecticut’s personal property tax upon vendors leasing slot machines to the Tribe for use at Foxwoods Casino.  In applying Bracker, the court recognized and weighed the following interests:

Federal

-       tribal economic development as expressed through IGRA

-       tribes being primary beneficiaries in gaming

Tribal

-       economic development

-       sovereignty over reservation

State/Local

-       interest in preventing litigation by other Indians related to personal property

-       the hassle of a particularized inquiry into use of leased property when applying Bracker

-       generalized off reservation infrastructure

-       uniform application of tax code

Given the nebulous context of balancing tests, it’s very rarely possible to say a Bracker case was fundamentally incorrect.  But it’s possible in Ledyard.  The profound federal and tribal interests receive a gloss, but the court gives weight to incredible state and local issues that don’t make sense internally.  First, the court reasoned that states have an appreciable interest in preventing litigation by those who have been illegally taxed.  How can a state have a legitimate interest in preventing litigation to enforce valid legal rights?  Wow, we have a major problem.  Second, the court reasoned that states have an interest in avoiding complicated, particularized inquiries into who and what is being taxed.  But Bracker itself requires a "particularized inquiry" into taxed value to determine whether state taxes are preempted—we have an even more major problem.  Third, if generalized off-reservation services can be taken into account, we have a major, major problem.  Add to the legally incorrect analysis the flip voice of this panel—“ nothing in Connecticut’s tax makes it likely that Michael Corleone will arrive to take over the Tribe’s operations” —and, in sum, we have a major, major, major problem.

When Bracker fails even in the clearly preemptive IGRA context, caution must be used in using it at all.  While Bracker may still be viable in the administrative context, and in securing clear rulings from non-tribal taxing agencies, in courts, its demise may not have been exaggerated—until a court reads the 1980-decision correctly.

Anthony Broadman is a partner with Galanda Broadman PLLC.  He can be reached at anthony@galandabroadman.com.  His practice focuses on company-critical litigation and representing tribal governments in public affairs, taxation, and economic development matters.  He provides businesses and tribal governments advice regarding taxation, risk management, and legislative strategy.  Anthony was named a Rising Star by Washington Law & Politics magazine for 2013 and is immediate past Chair of the WSBA Administrative Law Section and Editor of the Indian Law Newsletter, published by the WSBA Indian Law Section.

IRS Targeting Is Nothing New—For Indian Country

Lost in the IRS-Tea-Party scandal is the fact that federal tax collectors have been targeting certain groups—Indian tribal governments—for years.

As Rep. Darrell Issa, R-Calif., Chairman of the House Oversight Committee, wastes Congress’s time on what really looks like a manufactured scandal, Indian Country should focus its attention on the IRS’s special wing—the ITG—focused on “provid[ing] Indian tribal government customers top quality service by helping them understand and comply with applicable tax laws, and to protect the public interest by applying the tax law with integrity and fairness to all.”  Which is code for auditing them.

The irony hasn’t been lost on those paying attention.

If the IRS had a division focused on providing anti-tax group “customers top quality service by helping them understand and comply with applicable tax laws,” Representative Issa might have a real scandal on his hands.

For what it’s worth, it would be more rational for the IRS to have a division focused on anti-tax groups as opposed to tribes.  Anti-tax groups are—surprise—less likely to pay taxes.  But ironically it is tribes and tribal members—supposed “Indians not taxed” according to the Constitution—who have been targeted and forcibly taxed by Uncle Sam since long before Representative Issa’s crusade.

Anthony Broadman is a partner with Galanda Broadman PLLC.  Anthony’s practice focuses on company-critical litigation and representing tribal governments in public affairs, taxation, and economic development matters.  He provides businesses and tribal governments advice regarding taxation, risk management, and legislative strategy.  Anthony was named a Rising Star by Washington Law & Politics magazine for 2013 and is immediate past Chair of the WSBA Administrative Law Section and Editor of the Indian Law Newsletter, published by the WSBA Indian Law Section.

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

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

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

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

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

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

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

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

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