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Gabe Galanda has been honored as one of the Best Lawyers in America, in both Gaming Law and Native American Law, for the ninth straight year. He has now received the award in each year from 2007 to 2015.
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.
According to Jurist:
American lawyers have been concerned for some time that the legally protected space for attorney-client communications is shrinking. But recent reports detailing massive electronic surveillance by the US government suggest truly confidential communications may largely be a thing of the past.Documents leaked to the press over the past year by former NSA contractor Edward Snowden reveal that the US government is sweeping up vast amounts of private data and communications, including confidential
information related to ongoing legal matters and privileged communications between attorneys and their clients. . . .
Concerns are especially pronounced in contexts where the US government is an opposing legal party. . . . As one prominent public interest lawyer put it, fear of government surveillance makes sense in part because the government that holds all of the surveillance information is also "the adversary we're worried about."
Should tribes be concerned that the United Sates has swept up confidential emails and other electronic communications between tribal clients and lawyers?
Tribes and tribal lands have too frequently been referred to as havens for organized crime and, more recently, for terrorism, especially by way of gaming and tobacco industries. So I would not rule out NSA surveillance in Indian Country.
And with tribes now duking it out in federal court with the likes of the holier-than-thou FBI and ATF, I, too, would not rule out the possibility of DOJ gaining access to the data and using it for litigation advantage.
Tribal lawyers and leaders, take note, and take precaution.
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.
Over the last decade, lawyers--predominately non-Indian lawyers--have devised a set of plays to "win" the mass disenrollment of Indian citizens. The plays are drawn up, even scripted, behind closed tribal doors, to further advantage offending tribal leaders on what is already an uneven political and legal playing field. If you see or hear any of these plays being called, pay close attention. Or you and yours may be the next to play defense against disenrollment.
Enrollment Audits--the beginning of a mass disenrollment effort (see "Auditing Tribal Sovereignty")
Battle of the Experts--engaging non-Indian, hired-gun genealogists or anthropologists (those who Vine Deloria, Jr., rightly called "culture vultures") to discount a family's lineage and disrespect the ancestors
No Magic Words--avoiding federal habeas corpus review under Poodry and Sweet by not saying "banished"
Provisional Disenrollment--denying equal rights to those members who are merely proposed for disenrollment, typically starting with the deprivation of gaming per capita monies (see "Tribal Per Capitas and Self-Termination")
Posthumous Disenrollment--disenrolling the dead, perhaps without notice to the living
Audibles--changing the rules of engagement as they go, to advantage those doing the disenrollment
Disenrollment Moratorium--once the politically unpopular members are disenrolled, impose a moratorium to prevent the disenrollment of those who accomplished the disenrollment
Galanda Broadman is an American Indian owned law firm dedicated to defending Indian rights. The firm has represented nearly 500 disenrollees in disenrollment proceedings and contoversies since 2013.
In all of your deliberations...in your efforts at law making, in all your official acts, self-interest shall be cast into oblivion....Look and listen for the welfare of the whole people and have always in view not only the present but also the coming generations, even those whose faces are yet beneath the surface of the ground – the unborn of the future Nation. -- Great Law of the Iroqouis
While some tribes who terminate their own people, spare the ancestors by not “posthumously disenrolling” them, any disenrollment of a descendant amounts to disenrollment of the dead.
Today’s disenrollees descend from Treaty Chiefs, reservation founders, original allottees, termination defenders, and other tribal matriarchs and patriarchs. Many of those ancestors signed a Treaty or accepted an Indian homestead, or defended those Indian holdings, to ensure that the coming “seven generations” would survive.
So when a tribe severs the ancestors’ so-called “down line” of lineal descendants,the ancestors are essentially disenrolled—or dismembered—too. The seven generations are severed.
What offending tribes fail to fully appreciate is that along with the jettisoned ancestors go the tribe’s legitimate ties to aboriginal lands, sacred sites, time-honored rites, and so much more that makes the tribe tribal.
Indeed, to disenroll is to cut off a tribe’s nose to spite its face. It is self-dismemberment.
Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman, an American Indian law firm dedicated to defending Indian rights. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.
Fueled by the $26 billion Indian gaming industry, the country’s most famous restaurant franchises are moving to tribal lands like never before. Subway, Burger King, Sonic, Arby’s—you name ‘em.
Franchise lawyers need to appreciate that lawyering a franchise deal in Indian Country is akin to doing so in a foreign country. A form franchise agreement is likely a square peg, in tribal reservation deals. To illustrate:
Do federal franchise laws apply to the reservation franchisor? Probably. See Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960).
Do they apply to a tribal franchisee? Probably not. Cf. Multimedia Games, Inc. v. WLGC Acquisition Corp., 214 F. Supp. 2d 1131, 1131 (N.D. Okla. 2001).
Do state franchise laws apply to either party? Nope. Worcester v. Georgia, 31 U.S. 515, 559 (1832).
Do tribal laws apply to the franchisor? Yep. See e.g. Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011).
Does the United States need to approve the franchise agreement? Maybe. See 25 U.S.C. § 81.
Can the tribe tax the franchisor vis-à-vis its on-reservation activities? Yep. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980).
Can the state? Maybe. White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).
The list of unique federal Indian and tribal legal issues goes on and on. In all, franchisor beware—especially franchise counsel.
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.
We talk the Indian civil rights talk, and walk the walk.
We advocate on behalf of American Indians for:
Galanda Broadman is an American Indian owned law firm dedicated to defending Indian rights.
Your dead cease to love you and the land of their nativity as soon as they pass the portals of the tomb and wander away beyond the stars. They are soon forgotten and never return. Our dead never forget this beautiful world that gave them being. They still . . . yearn in tender fond affection over the lonely hearted living, and often return from the happy hunting ground to visit, guide, console, and comfort them. -- Chief Seattle
There is perhaps nothing more reviling about disenrollment, than the disenrollment of ancestors, or what offending tribes call "posthumous disenrollment."
It has happened at Saginaw Chippewa, at Las Vegas Paiute, at Robinson Rancheria, and most recently, at Grand Ronde. And it could happen to your ancestors, and to you.
The reason the offending tribes--or more precisely, their lawyers--or even more precisely, their non-Indian lawyers--disenroll the dead is because many IRA tribal constitutions include language that says if you descend from an enrolled tribal member (and satisfy other requirements, like blood quantum), you are entitled to tribal membership too.
As such, in order to disenroll large swaths of tribal members, as is happening at now epidemic levels, an offending tribe must go back multiple generations on a family's tree, to disenroll not only the living, but the dead.
Beyond rightful moral outrage to so disturbing and dishonoring the ancestors, the maneuver raises due process questions, especially insofar as an offending tribe does not give even the ancestors' living descendants notice or opportunity to be heard.
To some tribes death is so sacred that the community can never again utter an ancestor's name; they are to be left in peace.
To other tribes, nothing is sacred.
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.
Today, the Second Circuit Court of Appeals smacked down a New York county assessor's attempt to foreclose upon Cayuga-owned fee lands in a desperate attempt to recover state ad valorem property taxes from the Tribe. Cayuga was a benefactor of both the Oneida Nation's genius mooting of Oneida Indian Nation of N.Y. v. Madison County, before the U.S. Supreme Court, as well as the Bay Mills Tribe's lucky win before the Supreme Court in Michigan v. Bay Mills Indian Community. Bay Mills should have been mooted too.
The Cayuga decision represents another win in a surprising run for tribes in state property tax or fee assessment disputes before federal circuit courts of appeals.
Last year, the Ninth Circuit struck down property taxes on permanent improvement to Chehalis tribal trust lands in Confederated Tribes of Chehalis Reservation v. Thurston County Bd. of Equalization; and the Seventh Circuit struck down a local assessment of stormwater "fees" against Oneida trust lands in Oneida Tribe of Wisc. Indians v. City of Hobart.
Amidst serial federal court losses in other state-tribal tax contexts (i.e. sales and excise taxation), it seems that Indian property tax or tax-related cases are still winnable. See also Crow Tribe of Indians v. Montana (9th Cir. 1987). Granted, Cayuga was a sovereign immunity, not Bracker, case but the county's suggested in rem exception to tribal immunity would have catalyzed state taxation of Indian property nationwide.
In any event, Richard Guest of NARF's advice remains sound:
Stay out of the courts! The federal courts are not your friends anymore. The majority of judges sitting on the lower federal courts were appointed by Bush II – very conservative, have no understanding of Indian country at all. No interest in your issues. And that can be said of the Roberts court as well. It’s a very difficult place for tribes to secure victories.
Difficult, but thankfully not impossible, at least in the Indian property tax context.
Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman, which handled various Indian tax controversies. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.
By Anthony Broadman
The Association for Convenience and Fuel Retailing (NACS) again attacked tribal tobacco today, this time before the U.S. Senate Committee on Finance. A long time enemy of legitimate tribal tobacco businesses, the convenience store lobbying group continued to parrot the arguments of big tobacco and attempted to fundamentally mislead the Committee in a statement today.
NACS, part of the “deadly alliance” between convenience stores and big tobacco, has an enormous dog in the tribal tobacco tax fight. Sales of tribal tobacco undercut the roughly $260-billion in sales of tobacco at NACS constituent stores. But what is more sinister is that NACS is using federal and state political pressure to carry its water in what amounts to anti-competitive marketing campaign. Even worse, it’s using misinformation to do so.
NACS's arguments parrot those espoused in the summer of 2011 by Altria, parent company of Philip Morris USA, in an attack on New York tribal smoke shops. Today, NACS claims:
Many Native American tribes and tribal retailers are abusing their sovereignty to evade state taxes on sales of tobacco. Such tribes and retailers abuse their ability to sell tax-free to their own members and expand those sales to non-members even though the Supreme Court has said states can tax tribal sales to non-members.
The Department of Justice disabused Philip Morris and the rest of Big Tobacco of this blanket statement 15 years ago; tribal tobacco is not “abusing” sovereignty. States simply lack jurisdiction to interfere with Tribal economic activity when it involves “value generated on the reservations by activities involving the Tribe.” New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 340. (1983) citing Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134 (1980).
In Washington State, 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). In other words, if a Tribe adds value to a product and sells it on the Reservation, it shouldn’t be taxed. The blanket claim that all sales of tribal tobacco are taxable is incorrect, and irresponsible. If NACS wants a level playing field as it claims, it should at least correctly state the law. It can start by letting Tribes decide how to exercise their Tribal sovereignty—not Big Tobacco lobbyists.
NACS argues further:
Native American tribes have immunity from lawsuits in U.S. courts. This immunity is greater than the immunity granted to the United States or foreign governments – all of which can be sued when they act in a commercial rather than a governmental capacity. Tribes have used this unprecedented immunity as a tool to block state efforts to enforce their tax laws. While the federal government can enforce its laws against tribes, states simply cannot.
Stop us if you’ve heard this one before. Which you should have already, because these are exactly the sky-is-falling claims Altria made in 2011 when it argued “Native American Cigarettes Are Not Entitled to ‘Supersovereign’ Immunity.” Tribal tobacco is regulated by the entities that have authority to do so: the United States and Tribal Governments. Framing the issue as though Tribes are “block[ing] state efforts to enforce their tax laws” turns basic notions of Tribal Sovereignty on their head.
Tribes are not blocking legitimate state regulatory incursion; in protecting tribal tobacco from illegal state regulation, Tribes are simply enforcing the very component of federal law that NACS so fears: “While the federal government can enforce its laws against tribes, states simply cannot.” That much is right, NACS.
And instead of honoring that fundamental premise of our federalist system, these convenience store lobbyists ask the Senate to prevent tribes from “us[ing] the cover of their sovereignty” to do business and claim “[t]his is a problem that must be dealt with[.]” In addition to these veiled requests for an abrogation of Tribal sovereign immunity, NACS wants the United States to limit sovereign immunity for newly recognized Tribes, presumably so that states can sue other Tribes over illegal state tobacco taxes.
NACS should be held to the facts, even when it’s inconvenient.
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.
It has been 16 months since we first began to defend American Indians from disenrollment, or what Prof. David Wilkins rightly terms "dismemberment." We have since defended nearly 500 Indians from that atrocity.
We are deeply gratified to have helped spare 104 Indian lives this year--a tribal family of 28 in Oregon, and another Indian family of 76 in California. 
We are also pleased to have stayed or enjoined the disenrollment of 306 Indians in Washington State since mid-2013.
But we are deeply anguished by our failure to have thus far prevented the disenrollment of 67 Indians in Oregon. They all have appeal rights, so our fight for them is not over. But they are "disenrolled," pending appeal.
Perhaps worst of all, the ancestors of 66 of those Oregon Indians were also disenrolled--posthumously, and without any notice to the living.
We oppose disenrollment, and we hope that the number of Indians visibly opposed to that mode of self-termination grows before it is too late.
Galanda Broadman is an American Indian owned law firm dedicated to defending Indian rights.
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