Gabe Galanda Featured Law360 Commentator Re Bay Mills Decision

After the Supreme Court's shocking decision in favor of the Bay Mills Indian Country, leading law blog, Law360, quoted Gabe Galanda at length about the decision, in "Bay Mills Ruling To Fuel New Fights Over Tribal Immunity."

“BayMills is the most significant Supreme Court win for Native America in the last 25 years, maybe ever," Gabriel S. Galanda 
of Galanda Broadman PLLC told Law360. "It categorically affirms not only tribal sovereign immunity from state action, but also tribal sovereignty and Indian gaming in general. ... Still, tribal governments are nowhere near out of the woods.” 

For one thing, both Justice Elena Kagan, in a footnote to the majority opinion, and Justice Clarence Thomas in his dissent, alluded to an open question that remains: Does tribal sovereign immunity extend to an off-reservation tort, like an automobile accident caused by a drunk driver or casino patron? . . .

Lower courts could take the Supreme Court opinion as a cue to abandon sovereign immunity precedent if there's “special justification,” such as if a claimant were unable to secure some form of remedy otherwise, experts say.

“That passage [in the majority opinion] can be read by lower court judges as a signal to develop a remedy for a tort claimant, especially off-reservation, and allow the federal appellate process to go from there,” Galanda said.

Gabe and his partner Anthony Broadman were previously very critical of those federal powers that be, in particular, who did not moot the case before it reached the typically anti-Indian High Court (see here, and here.)

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

Gabe Galanda Publishes Re: Local/Global Native Prisoners' Religious Rights Movement

Gabriel Galanda published “To Geneva With Love: Native Prisoners’ Religious Rights Movement Goes Global.” The article appears in the May edition of King County’s Bar Bulletin, which is themed “Curtain.” The article begins with a citation to a famous U.S. Supreme Court prisoners’ rights case:

There is no iron curtain drawn be- tween the Constitution and the prisons of this country.” Nor is there an iron curtain drawn between international human rights norms and American prisons, especially insofar as Native American prisoners — or internationally speaking, American indigenous prisoners — are concerned.

Gabe goes on to explain how a local, grassroots, Native prisoners’ religious rights advocacy movement has ascended to national and international heights. He details various local, national and international legal and political interventions by the Native prisoners’ rights non-profit, Huy, and its allies, focusing on its advocacy via the United Nations:

By 2013, Huy aligned with longtime Native religious rights warriors, the Native American Rights Fund in Denver and the American Civil Liberties Union’s national and local chapters, to grieve the religious plight of Native inmates in state prisons throughout the United States to even higher powers. That coalition filed letters of allegation with the United Nations Office of the High Commissioner for Human Rights’ Special Rapporteur on the Rights of Indigenous Peoples, as well as the U.N. Human Rights Committee . . .

In June 2013, the Special Rapporteur on the Rights of Indigenous Peoples, joined by the U.N. Special Rapporteur on Freedom of Religion or Belief, wrote the U.S. State Department, requesting that within 60 days the government respond to the Huy coalition’s allegations and “provide any additional information it deems relevant to the situation.” The special rapporteurs posed a series of questions, including:

What measures exist to ensure the protection of the religious freedoms of Native American prisoners in state and local prisons? Specifically, what legal, policy or programmatic actions, if any, have federal and state Government authorities taken to ensure that Native American prisoners are able to engage in religious ceremonies and traditional practices as well as have access to religious items in state and local prisons?

Almost a year later, the State Department has yet to respond in any way to the U.N. special rapporteurs.

The United States’ continued silence is indicative of its and other nations’ failure to respect the right of American indigenous prisoners to freely exercise their religion, and to afford those prisoners with effective remedies when state correctional agencies and officers violate their rights.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California, and the founder of Huy (www.huycares.org) and Chairman of the Huy Board of Advisors. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda to Explain Tribal Sovereignty Issues Re State-Legalized Marijuana

On Monday, Gabe Galanda will address the Affiliated Tribes of Northwest Indians General Assembly, during ATNI's Mid-Year Convention this week at the Chehalis Tribe's Great Wolf Lodge, regarding the tribal and federal legalities associated with state-legalized marijuana, as well as related tribal economic opportunities.

The topic couldn't be hotter. Consider the following recent headlines about legalized marijuana in Indian Country:

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

So What Is a "Permanent Improvement" to Indian Land?

Much is being made of the new U.S. Department of the Interior leasing regulation, 25 C.F.R. § 162.017, which makes clear that "permanent improvements" to leased Indian land are “not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State." Related FAQs from those in tribal economic development, include: What is a permanent improvement? What makes an improvement permanent? And most commonly, does [insert type of real or personal property] constitute a tax-exempt permanent improvement? This blog attempts to help folks answer such pivotal questions from a legal point of view.

25 U.S.C. § 465 of course explicitly exempts Indian trust land from state and local taxation. In Mescalero Apache Tribe v. Jones, it was held that Section 465 exempts not only tribal land from state and local taxation, but any tax that the Court deems to be an equivalent to a tax on land, including any “permanent improvements” thereon. 411 U.S. 145, 158 (1973).

Such is true regardless of how the state characterizes those improvements. See Drye v. United States, 528 U.S. 49, 52-53 (1999) (federal law, not state law, defines “property and rights to property” for purposes of a federal tax statute); Confederated Tribes of Chehalis Reservation v. Thurston County Bd. of Equalization, 724 F.3d 1153, 1158 (9th Cir. 2013) (“[I]t is irrelevant whether permanent improvements constitute personal property under [state] law.”).

Under federal law, there is no one definition of a “permanent improvement” for taxation purposes. PPL Corp. v. C.I.R., 135 T.C. 176, 193 (U.S. Tax Ct. 2010).

Instead, courts look to six factors, the “primary focus” of which “is the question of the permanence of depreciable property and the damage caused to it or to realty upon removal of the depreciable property.” Id. (quoting Trentadue v. C.I.R., 128 T.C. 91, 99 (U.S. Tax Ct. 2007)). These factors are as follows:

(1) “Is the property capable of being moved, and has it in fact been moved?” Whiteco Industries Inc. v. Commissioner of Internal Revenue, 65 T.C. 664, 672 (U.S. Tax Ct. 1975).

(2) “Is the property designed or constructed to remain permanently in place?” Id.

(3) “Are there circumstances which tend to show the expected or intended length of affixation, i.e., are there circumstances which show that the property may or will have to be moved?” Id.

(4) “How substantial a job is removal of the property and how time-consuming is it? Is it ‘readily removable’?” Id. at 673.

(5) “How much damage will the property sustain upon its removal?” Id.

(6) “What is the manner of affixation of the property to the land?” Id.

There you have it. So is your improvement permanent?

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

Dreveskracht, Galanda Publish ABA Tribal Court Litigation Guide

The American Bar Association Business Law Section just published the 2014 edition of Annual Review of Developments in Business and Corporate Litigation, which includes a 41-page Tribal Court Litigation chapter co-authored by Indian litigators Ryan Dreveskracht and Gabe Galanda of Galanda Broadman. An excerpt from the chapter's introduction:

“Indian law,” a body of tribal, state, and federal law, is the foundation for every transaction arising in or from Indian Country.  Almost every arena of commercial practice now intersects with Indian law, including tax, finance, merger and acquisition, antitrust, debt collection, real estate, environmental, energy, land use, employment, and litigation.  Therefore, virtually every business lawyer or litigator needs to have some working knowledge of Indian law.  This chapter seeks to provide that basic understanding.

Gabe served as the Editor-in-Chief of Annual Review for the 2007 through 2010 editions, and has co-authored the Tribal Court Litigation chapter each year since 2006. This is Ryan’s third year co-authoring the chapter, and his first year as its lead author.

Disenrollment: A Tale of Two Tribes

  Two neighboring California tribes are going about disenrollment in two completely different ways:

This week the Dry Creek Rancheria Band of Pomo Indians is becoming the latest tribe to terminate its own people.  For 70 Pomo Indians, it is not a question of whether they'll be disenrolled, but how quickly.

Meanwhile, just down the road, the Graton Rancheria has "buck[ed] the trend" of mass disenrollment by imposing constitutional limitations on the tribal government's ability to jettison its citizens.  (Graton Chairman Greg Sarris recently went on record before a group of California Indian leaders, denouncing tribal disenrollment, and becoming the first tribal leader to do so nationally.)

Tragically, Dry Creek's disenrollment efforts are related to Graton's very recent economic success:

Coming at a time when the tribe's River Rock Casino is suffering the bruising effects of competition from the newly opened Graton Resort and Casino in Rohnert Park, some suspect it's another way to trim expenses by reducing the number of Dry Creek tribal members who get a monthly “per capita” distribution of casino profits.

Indeed, the tragic trend of mass tribal disenrollment is very much about "money, and an 'individualistic, materialistic attitude' that is not indigenous to tribal communities."

I predict that for these two California tribes, history will tell:  "It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair."

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

Skateboarding & Saving the Lives of Indian Youth

This weekend saw the grand opening of the Port Gamble S'Klallam Skatepark (featuring the amazing artwork of Nooksack tribal member Louie Gong).  The skatepark, made possible with donations from the Sheckler Foundation and Grindline, is one of many that we have seen popping up all over Indian country.  Much more than concrete and metal, these parks save lives.

Despite what is portrayed on the X-Games and in Mountain Dew commercials, skateboarding is not a sport.  It is not a hobby.  In the words of Ian MacKaye, "Skateboarding is a way of learning how to redefine the world around you. It’s a way of getting out of house, connecting with other people, and looking at the world through different sets of eyes."

In this way, skateboarding does what basketball, football, and other organized sports do not. Indeed, skateboarding is extremely personal.  It allows a person to develop a style that is all his or her own, and it encourages creativity and thinking outside of the box.  Which is why it attracts misfits -- kids that do not fit in anywhere else are embraced by skateboarding.  Unfitting pants; oversized t-shirts; ripped up shoes.  These were all popularized by skateboarding, trendset by parents who could afford to buy their kids only one set of clothes a year to "grow into."  While this fashion faux pas would get you beat up at school, skateboarding embraced it.

To say that skateboarding isn't a sport is not to say that it isn't physically demanding.  To the contrary, skateboarding takes a tremendous amount of physical strength and endurance.  And, despite the myth skateboarders are stoners and drug addicts, just the opposite is true.  Junkies do not frontside flip 10-stairs. Indeed, studies have found that kids who skateboard are less likely to engage smoking, drinking, and drug use. One study on the Long Beach City Skatepark, located in a very high crime area of the city, found that from when the skatepark was installed in 2003 to 2008, drug related incidents dropped 60.9 percent.

Skateboarding provides native youth with freedom -- the freedom to take control of their lives, their bodies, the world around them, and their futures.

Native Americans and Alaska Natives are twice as likely to be diagnosed Type 2 diabetes.  Native kids that skateboard are much less likely to suffer complications from diabetes, and are 48-percent more likely to stay healthy as an adult (compared to 20-percent for kids who play organized sports).

Native American families are 50 percent more likely to endure domestic violence.  Skateparks provide a safe haven for Native kids, creating opportunity for social interaction with other youth which helps develop trusting and cohesive relationships that many of these kids just cannot receive at home.

Native Americans have one of the highest dropout rates in the Nation.   Skateboarding gives an outlet for hyperactive children who have trouble learning, and has been shown to improve performance in the classroom.

Young Native Americans are more than three times more likely to commit suicide -- up to ten times on some reservations.  Skateboarding creates a supportive environment for these at-risk youth.   You don’t have to be a cool kid.  You can’t get cut from a team.  You can show up with clothes that don't fit you, and nobody cares.  You can be a weirdo -- in fact, being an individual is encouraged.  Kids that skateboard generally have less anxiety, less depression, less feelings of hopelessness, and more satisfaction with life.

For Native youth trapped within the confines of the Rez, skateboarding gives an identity, a purpose, and a meaning to their lives.  When you fall down, you get back up and try again.  And skateboarders fall a lot.  Mad props to the Port Gamble S'Klallam Tribe and all of those who are helping its Native youth rise up.

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 tribal economic development.  Prior to practicing law, Ryan could be found shredding at any number of the skateparks between Southern California and Northern Washington, often sleeping in a van and living off of dried top-ramen.  He still skates.  He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Indian Land Buy Back Woes

Amidst news of $100 million in offers at Pine Ridge and other gold rush headlines, here's what a few folks are saying about Interior's Indian land buy back program as it hits the ground in select Indian Country locations:

BIA and BLM folks are saying "that there is absolutely no money available for BIA to do surveys unless they are cadastral surveys that support the BIA GIS program for the Buy Back Program. [The BIA] Central Office has taken away all Regional Office discretion in determining how funds for land surveys are made. What little money there has ever been at BIA for surveying to protect tribal boundaries is being swept up for the Buy Back Program. It is supposed to be the Cobell funds that support the Buy Back, not normal BIA operating funds.

Of course this is nothing new. Amidst Cobell, all BIA operating funds were swallowed up with trust reform.

[N]o appraisals came with the past offers or present offers. I will soon get an offer without an appraisal and will have no way to judge whether this offer was "fair" or not.

Appraisals are fundamental to the purchase and sale of any Indian land. Without them, the transactions are illegal.

The Buy-Back Program was created as part of the Cobell Settlement to purchase fractionated trust or restricted land from willing sellers at fair market value....If you voluntarily choose to sell, you will receive fair market value, plus a base payment of $75 per offer.

Interior continues to play hide the ball, feigning that the buy back program concerns only "willing sellers," when the agency knows full well that tribe-vs-member forced sales are looming.

As Indian Country fawns over $2 billion in new monies, the unfolding truth about the buy back might surprise folks.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

Tribal Online Lenders Need a Legal Attitude Adjustment

A review of recent federal judicial decisions against tribal online lenders shows that they are losing the war--resoundingly. Arguments under Tuscarora that federal consumer protection laws of general applicability, have fallen flat. Arguments that these tribal enterprises are immune from federal enforcement action (see U.S. v. James), have not surprisingly fared even worse. Tribal sovereignty is being eroded in the process of each federal court controversy.

The tribal online lending industry needs a legal attitude adjustment. Or is it only a matter of time before the industry meets its demise. Instead of throwing traditional federal Indian legal arguments against the walls of federal courthouses, in hope that they stick--they haven't yet--the industry needs to heed lessons learned by other tribes when over-zealous federal agencies like the IRS, FBI or ATF come barreling onto an Indian reservation or into a tribal economy.

Among other non-conventional tribal defense strategies, one that has been deployed effectively against such federal agencies of late is preemptive consultation:

[C]onsultation can be used as a sword—a preemptive strike that forces U.S. agencies to consult before taking action in Indian country—as well as a shield to guard from federal and private attacks on Indian sovereignty. As it stands, several federal agencies freely enforce their prerogative over tribes, under the guise of so-called federal laws of general applicability and increasingly with federal court approval. Still, at each stage of federal encroachment or enforcement, federal law requires consultation with tribal officials.

See e.g. "ATF Withdraws PACT Act FAQs; Downgrades Tobacco Investigations?"

As counter-intuitive as it might be for tribes to bring their enemies close (as Sun Tzu and Michael Corleone both advise), that is exactly what those tribes that are involved in online and are under federal siege, should do in hopes of regaining some battle ground. That is because if the FTC or CFPB violates normative protocols for pre-enforcement consultation between sovereigns, the agency can be sued under the APA and enjoined or stymied from proceeding. This strategy is fully discussed in "The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion."

After all, what else, or how much longer, can the tribal online lending industry stand to lose?

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

Truth & Reconciliation Re: The Fish Wars

Yesterday Governor Jay Inslee signed Washington HB 2080, which vacated pre-1975 state court convictions of tribal members who were engaged in Treaty fishing activities.  Reconciliation.

Today a piece by Gabe Galanda, "Washington Tribal/State Relations Evolving, But Further Work Is Needed," was published in the Spring 2014 edition of Indian Law Newsletter.  Truth.

A passage:

Over the next decade Washington’s “fish wars” ensued, with state and local law enforcement utilizing criminal arrest to deprive Indians of Treaty-reserved fishing rights, making matters even worse.  An epic clash of sovereigns ensued in the U.S. v. Washington litigation, resulting in a controversial decision by U.S. District Court Judge George Boldt that guaranteed the Tribes half of the fish harvest and by 1979, a momentous Indian victory before the U.S. Supreme Court.

The state was so resistant of Judge Boldt’s decision that the Ninth Circuit Court of Appeals compared it to states in the Deep South that refused to abide by federally mandated desegregation.  “Except for some segregation cases . . . the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century,” appellate court justices said of the Boldt Decision.  In the end, the judicial affirmation of the Tribes’ reserved Treaty right to fish, expressed as “their source of food and commerce,” solidified a foundation for the economic development we are witnessing today throughout Washington Indian Country.

Above all, though, “the Boldt Decision” entrenched Washington Tribes as a legal and political force to be reckoned with.

And a Tribute:

He dedicates this article to those Washington Indians who fought the fish wars and to the tribal lawyers who won the Boldt Decision.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.