Tribal Per Capita Poverty--How About Disenrollment Bankruptcy?

“In November, a [Las Vegas] Review-Journal reporter and photographer encountered one of the disenrolled, 52-year-old Darla Hatcher, sleeping with her meager belongings in front of an upholstery shop in the homeless corridor.

By way of introduction, she gestured toward nearby tribal land and said: “I am a disenrolled Paiute.’”

Thanks to some wonderful scholarship by Seattle lawyer Greg Guedel about the socioeconomic impacts of tribal per capita monies, The Economist has cast a bright light on the topic.  Guedel's research found that:

From 2000-2010, gaming Tribes in the Pacific Northwest that did not issue per capita payments to their members did better in reducing poverty rates than the gaming Tribes that issued per capita payments.

In other words, tribal per capita monies are not alleviating Indian poverty; they are exacerbating it.

Indeed, the apportionment of tribal communal assets and distribution of those assets to individual tribal members is, by the United States' design, a mode of tribal termination and Indian assimilation. See Tribal Per Capitas and Self-Termination ("Tribal per capita payments are a creature of the United States and its Indian termination policies.").  This dynamic dates back to the mid-1800s, although we as American indigenous people act oblivious to that genocidal reality.

To be sure, tribal per capita distributions are presently catalyzing the most severe form of Indian poverty: Disenrollment and exile from one's tribal community--and at epidemic levels.

As Professor David Wilkins explains:

Disenrollment takes an obvious financial toll . . . But it also can psychologically devastate former members.

“’It leaves them in a tenuous place of being betwixt and between,’ he says. ’They know they still are what they are claimed not to be. I just feel for them.’”

Surely other Indians feel for their brothers and sisters who have been spiritually, financially and otherwise bankrupt through disenrollment.  Right?

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Hopi Challenges EPA’s Approval of Navajo Coal-Fired Power Plant

By Amber Penn-Roco

On August 8, 2014, the Environmental Protection Agency (EPA) approved an Air Quality Implementation Plan, allowing the Navajo Generating Station, a coal-fired power plant located on the Navajo Reservation, to continue operating until 2044. The Plan required the Station to either close one of its three generators, or reduce output by an equivalent amount, by 2019. The Plan would not require the installation of any other emission controls until 2030.

EPA’s approval is controversial for several reasons. First, the Station “is the largest coal-fired power plant on the Colorado Plateau and one of the ten biggest polluters in the country.” Second, the public is concerned by the Station’s proximity to the Grand Canyon—it is located only 12 miles away—and because the Station “impacts visibility at 10 other national parks and wilderness areas.” Finally, many believe the EPA’s approval of the Plan was premature and allows for operations extending too far into the future—potentially until 2044. (Although, the Station site lease with the Navajo Nation is set to expire in 2019, the renewal of which will require the completion of an Environmental Impact Statement (EIS) that will look closely at the potential impacts of the Station and surely ignite even more controversy.)

EPA’s approval set off a flurry of litigation. Four separate Petitions have been filed with the Ninth Circuit Court of Appeals, requesting that the court review the Plan, pursuant to the Clean Air Act. The Petitions were filed by the Hopi Tribe, a collection of environmental groups, including the National Parks Conservation Association, the Sierra Club, the Grand Canyon Trust, the National Resources Defense Council, the Black Mesa Water Coalition and the Diné Citizens Against Ruining the Environment and two private individuals. The Navajo Nation has intervened in the proceedings. Last month, the cases were consolidated.

This litigation will pit conflicting tribal interests against each other. On one side, the Navajo Nation, which has obvious financial interest in the success in the Station. Both the Station and the Kayenta Mine, which supplies the Station, are located on the Navajo Reservation, providing jobs, lease income, royalties and taxes to the Navajo Nation. On the other hand, you have the Hopi Tribe, which is protecting its environmental interests. During the public comment process, the Hopi expressed concerned with the air quality and visibility on the Hopi Reservation and indicated that the EPA should have provided more detail on the specific emission controls that the Station will be required to use. It is particularly interesting that the Hopi has filed a Petition for Review, even though the Hopi also has an economic interest in matter; the Kayenta Mine is actually located on the reservation lands of both the Navajo Nation and the Hopi, providing the Hopi with similar forms of revenue that are enjoyed by the Navajo Nation.

Which tribal or environmental interests will prevail? The opening briefs, which are due at the end of the month, should shed some light on the interests and arguments of the parties.

Amber Penn-Roco’s practice focuses on tribal sovereignty issues, including environmental issues, economic development, and complex Indian Country litigation. Her experience also includes work on transactional matters, including entity formation, environmental compliance and permitting.  She is an enrolled member of the Chehalis Tribe.

Happy Holidays, from Galanda Broadman

Congress Extends Various Federal Indian Tax Incentives

According to the Native American Finance Officers Association (NAFOA):

The Indian Tax Extenders, found in the Tax Increase Prevention Act of 2014, [H.R. 5771], cleared the Senate yesterday by a vote of 76-16. The Tax Prevention Actprovides a one-year extension to a number of tax incentives that expired in December of 2013. The so-called Indian Extenders included in the legislation are designed to incentivize direct investment in projects on Indian lands and the hiring of Indian people. The New Markets Tax Credit program, included in the legislation, will also impact tribal development.

The provisions affecting Indian Tribes include:

1. Accelerated Depreciation for Business Property on Indian Reservations

This provision provides an incentive for private businesses to locate on Indian reservations. It provides qualifying property and infrastructure investments with a faster write-off than such property would otherwise receive under the regular tax code depreciation schedules. Accelerated Depreciation is a critical component of attracting capital-intensive projects to reservations and can bring higher-skilled jobs to Indian communities.

2. Indian Employment Tax Credit

This provision provides a 20-percent tax credit for the first $20,000 of wages for any tribal member or spouse employed by a private business operating on an Indian reservation. The provision is not applicable to tribal government jobs, high-wage jobs (defined as jobs paying more than $45,000 per year), or gaming jobs, which limits its value.

3. The Indian Coal Production Tax Credit

This provision provides a production tax credit equivalent to $2.00 per ton to coal produced on land owned by an Indian tribe.

4. New Market Tax Credit

This provision extends the New Markets Tax Credit (NMTC) Program for FY 2014. The NMTC Program was established by Congress in 2000 to spur investments in projects located in low-income communities. While this provision holds promise for Indian Country, tribes have not received a fair share of investments from the popular incentive.

For more information, please contact Kayla Gebeck, Kayla@nafoa.org or (202) 770-8321.

Gabe Galanda blogged about Congress' previous extension of these tax incentives, in 2013, via the Fiscal Cliff bill package.

Stylebook for Indian Country Journalists Published As E-book

SEATTLE – Does the First Amendment apply to journalists covering stories on Indian reservations? What is “Indian country”?

What authority do Tribal governments have on- and off-reservation?

What are the proper terms for the clothing articles someone wears at a gathering?

“Indian Country Stylebook for Editors, Reporters and Writers” is newly published as an e-book (available at Amazon.com), and is designed to help its users understand Indian country and its customs, cultures and laws.

The guidebook evolved after a panel discussion, “Tribal Nations and the Media,” at the 2013 Washington Newspaper Publishers Association convention in Olympia. Questions asked at that conference made it clear that such a guidebook would be helpful.

The Indian Country Stylebook is patterned after the Associated Press Stylebook for familiarity and ease of use. The guide contains more than 100 entries, with correct spellings, word usages, and legal references; a briefing on American Indian Law; a briefing on newsgathering in Indian Country; a directory of indigenous nations in Washington state; and a directory of Indian country media in Washington state.

The following individuals participated in the creation of the stylebook: Richard Walker, Mexican/Yaqui, an editor for Sound Publishing Co. and correspondent for Indian Country Today; Jackie Jacobs, Lumbee, media relations coordinator for the Quileute Tribe and principal of JTalentgroup, a Seattle-based Public Relations and Marketing agency; and Gabriel Galanda, Round Valley Indian Tribes, and Amber Penn-Roco, Chehalis Tribe, Galanda Broadman, PLLC.

The cover, “All Rights Reserved,” was designed by the artist Louie Gong, Nooksack. Mark Trahant, Shoshone/Bannock, columnist, author and 2014 Atwood Chair of Journalism at the University of Alaska Anchorage, provided pre-publication review.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is a citizen of the Round Valley Indian Tribes.  Amber Penn-Roco is an Associate in the firm's Seattle office. She is a Chehalis Tribal member.

Gabe Galanda in "Indian Gaming": Why Isn't the NIGC Enforcing IGRA?

In a column for the feature, "Ask the Experts: Spotlight on 2015 and Beyond," in the New Year edition of Indian Gaming magazine, Gabe Galanda questions the NIGC's commitment to enforcing IGRA and related laws in Indian Country:

2015 will bring answers to growing questions surrounding the National Indian Gaming Commission’s ambivalence about enforcement of the Indian Gaming Regulatory Act.

In Bay Mills, various state amici curiae argued to the U.S. Supreme Court that the “Commission only rarely invokes its authority to enforce the law against Indian tribes.” That criticism tracks with the U.S. Government Accountability Office (GAO)’s recent preliminary report to Congress that “[i]n recent years, the Commission has rarely initiated enforcement actions.” According to GAO findings, the NIGC issued a single Notice of Violation in 2012 and 2013—combined.

Meanwhile, as tensions boil over at several California tribal casinos, people are asking: Where’s the NIGC?

After prolonged IGRA violations and related physical violence within the Picayune Rancheria of Chukchansi Indians, a federal judge closed the tribe’s casino, describing the situation as an “explosive keg.” The NIGC took no enforcement action for nearly three years. According to the Fresno Bee, former NIGC Chairman Phil Hogen said “he’s unsure why the NIGC now takes longer to file action against tribes not following Indian gaming regulations than it did under his watch.”

Likewise, the NIGC failed to help resolve a violent situation within the Paskenta Band of Nomlaki Indians this summer. Former NIGC Regional Director Ken Many Wounds issued an investigatory report that described an “unprecedented show of force by armed guards” and “palpable potential for violence” throughout Paskenta’s casino floor. He expressed “surprise that the NIGC has not taken swift action to shut down the Rolling Hills Casino” and “by the rather nonchalant pace of the NIGC’s investigation” into obvious IGRA and state-tribal compact violations.

And as mass Indian disenrollment accompanies these catastrophes, so do tribal revenue allocation plan-related IGRA violations. Yet, the NIGC has not taken a single enforcement action for improper tribal gaming per capita payments in over five years.

Given that certain tribes’ irresponsible use of gaming revenues once caused Senator John McCain to propose an IGRA amendment to allow federal review of a “reasonable method of providing for the general welfare of the Indian tribe and the members of the Indian tribes,” non-offending tribes should be concerned.

Indeed, with the GAO’s final report expected before long, as Dave Palermo posits, its “critical assessment” of the Commission, “coupled with diminished NIGC enforcement, could be viewed by senators as justification to seek increased federal regulation of the industry.” Before that opportunity might present itself to the Republican-controlled Congress, hopefully the NIGC will reestablish a meaningful enforcement presence in Indian Country.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda Featured in NWLawyer

Gabe Galanda is featured in this month's edition of NWLawyer in reference to the Excellence in Diversity Award he was bestowed with by the Washington State Bar Association this fall.  The WSBA also produced a video commemoration of Gabe's award and accomplishments, which can be viewed on YouTube. Gabe is pictured receiving his award, on the cover of the magazine, at bottom right:

as well as inside of the magazine:

Gabe was primarily honored for his work associated with Huy, a non-profit that provides economic, educational, rehabilitative and religious support for American Indian, Alaska Native, Native Hawaiian and other indigenous prisoners in the Pacific Northwest and throughout the United States.  In 2012, Gabe founded Huy–pronounced “Hoyt” in the Coast Salish Indian Lushootseed language, to mean “see you again/we never say goodbye.”  He serves as the Chairman of Huy’s Board of Advisors, and runs the non-profit through his law office.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Anthony Broadman Quoted by National Media Re DOJ's New Tribal Pot Policy

Anthony Broadman has been quoted or featured by the Associated Press, ABC News, Time, VICE News and other media outlets regarding the Department of Justice's recently issued policy regarding marijuana cultivations and sales on federal Indian lands.  He has blogged about the intersection of Washington's legalization of recreational marijuana, and tribal sovereignty (here and here).

Anthony Broadman is a lawyer with Galanda Broadman in Seattle. He told Vice News the following in an interview:

“People who I’ve spoken to are excited about this, but along with that excitement there is a lot of caution that stems from tribal history with alcohol and substance abuse. The biggest issue is if tribes are going to want to use a drug as a way to make money. The history of Indian tribes and substance is not a pretty one.”

Anthony's partner Gabe Galanda has also spoken to Pacific Northwest tribal leadership on these topics.  (His related PowerPoint slides are potentially available upon request.)

Galanda Broadman takes no position on whether tribal governments should legalize, regulate or tax recreational or medicinal marijuana, or forbid the the cultivation, possession or sale of marijuana, on Indian Country lands; but instead encourages every tribe to develop some form of policy to address the host of tribal sovereignty issues poses by state-legalized marijuana.

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, Penn-Roco Co-Author Indian Country Stylebook for Journalists

Gabe Galanda and Amber Penn-Roco collaborated with journalist Richard Walker (Mexican/Yaqui), publicist Jackie Jacobs (Lumbee) and indigenous artist Louie Gong (Nooksack)--all trailblazers in their respective fields--to publish the Indian Country Stylebook for for editors, writers and journalists.  The stylebook is patterned after the AP Stylebook.

The Indian Country Stylebook include definitions and proper uses, and briefings on American Indian law and news-gathering in Indian Country. Gabe and Amber authored the Indian law section.

Leading Indian journalist, Mark Trahant (Shoshone-Bannock) reviewed the Indian Country Style Guide

"The best journalism is precise. That includes references that are accurate and reflect Native people, tribes and communities as we see ourselves. That's why the Indian Country Stylebook is an essential reference."

The Indian Country Stylebook is available for download at Amazon.com.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is a citizen of the Round Valley Indian Tribes.  Amber Penn-Roco is an Associate in the firm's Seattle office. She is a Chehalis Tribal member.

Gabe Galanda Quoted by AP re Lawyer-fueled Tribal Civil Wars

The Associated Press quotes Gabe Galanda regarding Indian lawyer/lobbyist-fueled tribal civil wars.

Tribal affairs attorney Gabriel Galanda said some lawyers are exploiting casinos to run up fees.

"It's all by design, lawyers and lobbyists taking advantage of a void of law and order in Indian country," said Galanda, who represented an ousted faction of the Paskenta tribe. "This is happening in too many places, too frequently. I guarantee you that Chukchansi is not the last of them."

Gabe has recently offered spoken and written commentary regarding Indian lawyer ethics in the tribal civil war context.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.