Silver Linings to Wash. Supreme Court's Playbook in State v. Clark

Today the Washington State Supreme Court ruled against a Colville tribal member and pro-tribal friends of the court in State v. Clark. But, in the case --which Gabe Galanda co-argued, on behalf of the ACLU--there are stark silver linings that affirm tribal sovereignty, especially in Washington Indian Country and Treaty territory. The case concerned whether a county search warrant, obtained and executed by city police without any attempt to involve the tribal police or court, lacked authority of law, since it authorized the search of a tribal member defendant’s home situated on reservation trust land. The Supreme Court affirmed the defendant's "conviction for theft because the trial court properly denied his motion to suppress evidence gathered on tribal trust land without a tribal warrant."

But the silver linings lie in the Court's reasoning:

Clark asks us to recognize the Colville Tribes' interest by adopting the test used by the Supreme Court of Idaho in Matthews, which measures the infringement of tribal sovereignty by looking to whether the State ignored governing tribal procedures while serving criminal process. Ifthe State did so, then under Matthews the State undermined tribal self-government. The material facts of Matthews are quite similar to those of Hicks: state police searched tribal property for an off-reservation crime. Hicks' holding has superseded Matthews for this particular factual scenario. However, we agree that Matthews serves as the starting point for searches of reservation lands where Hicks is distinguishable, such as where the crime occurs on reservation land over which the State has jurisdiction. Consequently, we hold that the State does not infringe tribal sovereignty by searching reservation lands unless it disregards tribal procedures governing the execution of state criminal process.

What this means is that state law enforcement must follow tribal procedures governing the execution of state criminal process, before searching reservation lands. In Clark, the Court found the Colville tribe's procedure wanting because it "does not govern the way the State executes its own process. Indeed, the tribal warrant provision does not guarantee that the State could execute its warrant as the tribal court could refuse to issue a tribal warrant."

Still, if tribes promulgate clear codified procedures for the execution of state process on reservation lands (18 U.S.C. 1151), states and state police must honor those procedures. And crucially, that is notwithstanding Nevada v. Hicks. This is the starkest silver lining from Clark.

The other silver lining lies in footnote 9 to the last page of the opinion: "Clark does not argue that any treaty provision creates governing procedures for executing a state search warrant . . . We do not foreclose the possibility that the State would infringe tribal sovereignty by disregarding governing procedures created by such provisions with our opinion today. See State ex rel. Merrill v. Turtle, 413 F.2d 683, 686 (9th Cir. 1969)."  In other words, Treaty tribes, such as all Stevens Treaty signatories, have an even stronger basis to force state police to honor codified tribal procedures that govern state process on reservation lands, especially through inherent territorial exclusion rights. That, too, is notwithstanding Hicks, which did not involve Treaty rights.

So although the decision was a tribal defeat, there are silver linings to the Washington Supreme Court's playbook in Clark.

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 sovereignty and self-governance, especially in legal opposition to federal, state and local government encroachment.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.  His argument in Clark can be watched on TVW (at 35:49).

Northwest Tribal Lawyers Litigate To Protect Indian Chief's Grave

As featured on Turtle Talk, Galanda Broadman recently defeated summary judgment in a San Juan Superior Court case in which we are representing tribal member plaintiffs who directly descend from a Lummi/Clallam Chief. The Chief's grave and headstone sits on waterfront fee land on San Juan Island in Washington State, where that ancestor has lied in rest since the year 1900. In December 2012, the tribal plaintiffs allege that the Chief's headstone was disturbed, in violation of the state Indian Graves and Records Act and a covenant running with the land.

The case asks the question: who holds what sticks in the bundle of property rights, regarding an American Indian ancestors grave?

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.

Oregon Tribal Lawyer Anthony Broadman Talks About Cities' Role in the Future of Indian Gaming

This month's edition of Indian Gaming magazine leads with an article by Bend, Oregon tribal lawyer Anthony Broadman about the increasingly pervasive role of cities in budding Indian gaming developments.

Where do businesses target high density customer bases? Where can tribal governmental gaming expand in the post-exclusivity age? The answer to both questions is the same: Cities. As tribes seek new markets, and novel revenue sources, we are seeing an uptick in conflicts in connection with attempts to capture urban gaming markets. These are both the Hail-Mary lawsuits of anti-gambling community organizations and high-level intergovernmental disputes among cities, states, the BIA, and competing tribal governments.

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.

Ryan Dreveskracht Rips State of Montana's Anti-Bison Bills

Seattle tribal lawyer Ryan Dreveskracht lambasted a series of tribal bison-related bills introduced in the Montana state legislature as "another attack on Buffalo Country," according to an interview with Indian Country Today Media Network. That outlet also published his paper, "Montana’s Bison Bills: Another Attack On Buffalo Country."

Together the four pieces of tribal bison-related legislation, all introduced by Republicans, constituted “another attack on Buffalo Country,” said Indian law expert Ryan D. Dreveskracht in a recent interview with Indian Country Today Media Network. . . .

“Undoubtedly, the tribes that originally inhabited these lands had the right to manage, maintain, and hunt bison,” Dreveskracht said. “Congress has not clearly and unambiguously divested that right. The tribes’ exclusive authority to regulate on-reservation wildlife is thus derived [from] the retained inherent sovereignty over its tribal territory.”

He added that legally Montana is obligated to “protect [the tribes’] source of food and commerce” throughout the state, meaning both within Montana Indian country and beyond, on and off the reservation. Although the bills were touted as necessary “to protect domestic livestock from contracting brucellosis [for] the sake of public safety” in the name of conservation, Dreveskracht said, they would have in effect destroyed an entire indigenous culture and economy, nullifying rights that are engrained in treaty. These treaties, referred to in the U.S. Constitution as “the supreme Law of the Land, ” serve to “exempt the Indians’ preserved rights from like state regulation,” Dreveskracht said.

Further, he added, they impose an affirmative obligation on the state to assure that reserved resource is maintained in a manner that gives meaning to the tribes’ reserved right.

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 general economic development.  He can be reached at 206.909.3842 or ryan @galandabroadman.com.

Gabe Galanda Stumps On "Modern Federal Indian Tax Implications for Tribal Economic Development"

On March 13, Gabe Galanda spoke at the RES 2013 conference in Las Vegas, regarding tribal tax issues.  Here is his presentation Modern Federal Indian Tax Implications for Tribal Economic Development.  He addresses the following recent Indian tax developments:

Fiscal Cliff: Indian Country Tax Incentives Restored

Federal Leasing Regulations: Indian Country Tax Relief

PACT Act: Awful Precedent for State Taxation of N2N Commerce

Trending: State Taxation of Indian Country’s “Fringes”

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 sovereignty and self-governance, especially in legal opposition to federal, state and local government encroachment.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Top 10 Reasons Republicans Oppose Protecting Native Women

1o. “House Republican leadership just doesn’t get it.” – Sen. Patty Murray. 9.   The incidence of violence against Native women isn’t that bad– House Committee on the Judiciary, H.R. Rep. No. 112-480, at 227 (2012). This is absolutely false. Native American women suffer violent crime at the highest rates in the United States.

8.  “Legitimate rape” – Rep. Todd Akin.

7.  “The non-Indian doesn't get a fair trial" in tribal courts – Sen. Chuck Grassley. This is also false. Numerous studies have found the guarantees and traditions of fairness in tribal statutory and common law are equivalent to – and, indeed, sometimes even go far beyond – those granted in state and federal forums. And if there is any deviation, the federal Indian Civil Rights Act, 25 U.S.C. 1301-1303, assures non-Indian domestic offenders due process of law in tribal courts.

6. “If non-tribe members are tried in tribal courts, they are not protected by the United States Constitution and they have no right of appeal to the federal courts” – Sen. John Cornyn. This too is false. A non-member domestic criminal can seek a writ of habeas corpus in the U.S. District Court.

5.  A tribal jurisdictional fix “would likely be ruled unconstitutional by the courts.” – Sen. John Barasso. Congressional recognition of inherent tribal power to prosecute non-Indian domestic abusers is constitutional, as determined by the Supreme Court in U.S. v. Lara (2004). There is always the chance that the court will overrule Lara and change the state of the law, but to say that a law is currently unconstitutional because of something that the court might do in the future is nonsensical.

4.  They now have a token female to hide behind: Rep. Cathy McMorris Rodgers. McMorris Rodgers has recently voiced opposition to S. 47, arguing that the additional protections for Native Americans, immigrants, and gays and lesbians have no place in the law. McMorris Rodgers has in the past paid lip service to the tribal provisions, stating that she would “reach out to other GOP congresswomen to urge their support for the inclusive VAWA bill.” Apparently, she has now abandoned this position.

3.  Political Misogyny. This is a front in the very real, calculated GOP war against unmarried women, who after all, constitute the Democrat base. In the presidential election, married women backed Romney, 53 percent to 46 percent, while unmarried women chose Obama 68 percent to 30 percent. Political expediency has incented GOP’s anti-woman platform because unmarried women are opposed to Republicans’ policy goals on rape, birth control, abortion, equal pay, employment discrimination, and so on.

2.  Because they are Native American women. Republicans believe they can ignore issues affecting Native women, and they may be right. Unless Indian Country and its allies stand up to the GOP's anti-woman agenda, Republicans will succeed in further marginalizing Native women. Indeed, the GOP will prevail without even losing votes from their base, which, to be sure, includes few if any Indian women.

1.  Republicans are not being honest. There is no possible reasoned stance against VAWA. It’s Pascal’s Wager in the domestic violence context: the downside of failing to act on domestic violence in Indian Country outweighs any possible harm caused by acting. There must be another reason for their opposition. One they refuse to discuss in public (see #2).

Gabriel S. Galanda, Ryan D. Dreveskracht, and Anthony S. Broadman practice law with Galanda Broadman, PLLC. They pride themselves as "an Indian Country law firm," representing tribal governments, businesses and members in all varieties of dispute and business dealing. Ryan's article, "Congress' Treatment of the Violence Against Women Act: Adding Insult to Native Women's Injury," will be featured in the next edition of the University of Miami Race and Social Justice Law Review. 

Seattle Tribal Lawyer Gabe Galanda Argues for the ACLU Before Washington Supreme Court

On January 22, 2013, Gabe Galanda appeared before the Washington State Supreme Court on behalf of the ACLU of Washington, to co-argue State v. Clark. His argument can be watched on TVW (at 35:49). The case concerns whether a county search warrant, obtained and executed by city police without any attempt to involve the tribal police or court, lacked authority of law, since it authorized the search of a tribal member’s home situated on tribal trust land.

The briefing is available here, including the amicus brief co-authored on behalf of the ACLU by Gabe and Ryan Dreveskracht.

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 sovereignty and self-governance, especially in legal opposition to federal, state and local government encroachment.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

President Obama Can Do More For Indian Country

In consideration of recent posts on the successes of President Obama vis-a-vis Indian Country in his first term (for example, here and here), consider a few of Indian Country's trials and tribulations on his watch. 1. Disrespect for Tribal Territorial Autonomy: Agencies within the likes of Justice and Labor, led by the President's appointees, too frequently encroach upon tribal sovereignty and territorial autonomy without appropriate consultation with tribal authorities, as required by Treaties, federal statutes and those agency's own consultation plans and policies. In many respects, it remains business as usual for many federal agencies in terms of entering Indian Country at will to carry out the agency's prerogative. In other words, President Obama's promise of consultation, to federal folks on the ground, is "just words" -- especially given the President's endorsement of the UN Declaration and its "free, prior and informed consent" mandate for nation-state entry onto indigenous lands. I agree with those tribal leaders who insist that the President do more to ensure that "free, prior and informed consent" be integrated into federal policy and action as to issues of tribal implication.

2. Federally Sanctioned State Regulation/Taxation of N2N Commerce: Under guise of the PACT Act, Justice and its ATF have expressly sided with state governments in the enforcement of state civil regulatory laws and tax statutes against tribal governments and entrepreneurs who sell value-generated and other tobacco products from reservation to reservation. Despite the Fed's status as Trustee to Indians, which trust relationship the U.S. does not have to states, the Obama Administration has done so without any meaningful consultation with Indian Country. Even worse, the U.S. threatens to set a precedent of state regulation and taxation of any form of inter-tribal or reservation-to-reservation commerce or trade. Justice and ATF must immediately stand down, in deference to Indian self-sufficiency.

3. President's Unholy Alliance With Big Labor: President Obama struck deals with both Big Labor and Indian Country during his first election. Over the past four years, the Department of Labor has launched un unprecedented assault against Indian Country on behalf of labor unions and employees. In other words, the President has chosen the side of labor interests, which should come as no surprise given his strong predisposition to labor unions. Under banner of the NLRA, most notably, but also OSHA and ERISA, the agency has aggressively challenged tribal self-governance and in the process dishonored notions of tribal territorial authority and federal-tribal consultation. What Labor ultimately threatens to do is ensure that all federal labor laws of so-called general applicability, uniformly govern labor and employment in Indian Country, to the exclusion of tribal self-governance over those areas. Labor should also stand down, in deference to tribal self-governance.

4. Business As Usual With Interior Post-Cobell: It also remains business as usual for the Department of the Interior and BIA as to Indian trust land management, or mismanagement. Indeed, despite so-called "lessons learned" from Cobell, Interior and the BIA have not fundamentally changed the way they carry out the federal trust responsibility to Indian landowners, especially allottees. The $1.9 billion dollar Indian land consolidation, or "buy-back" program, exclaims this point, as Professor David Wilkins observes; instead of exploring new ways to resolve the fractionation epidemic, like Indian estate planning, Interior proposes to band-aid the disease, by creating a $285 million land consolidation/buy-back program, for career BIA employees to administer. All the while, they ignore and do nothing to propose resolution to the real problem of fractionation: non-Indian ownership of undivided interests in allotments. In other words, the more things change (Cobell), the more they stay the same -- and the same will hold true for Cobell-style Indian land controversy.

This critique is not to suggest that the President has not done more for American indigenous people that any President before him; indeed, he has done more than his ever predecessor. Nor is it to suggest naiveté that any President can stand absolutely allegiant to Indian Country in true respect for tribal sovereignty; indeed, no United States President can or ever will. But this critique is to suggest that the Obama Administration can, fundamentally, do more to respect the inherent rights of Native Nations and to resolve historic federal-tribal atrocities, during the President's next four years in the White House.  Yes he can.

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.

Tribal Energy Lawyer-Scholar Ryan Dreveskracht Publishes Tribal Solar Power Article

Ryan Dreveskracht has published his latest law review article on the topic of tribal renewable energy "Economic Development, Native Nations, and Solar Projects," in The American Journal of Economics and Sociology. It is available for free download here.

This article examines the issues surrounding sustainable eco- nomic development in American Indian country via the implementation of solar energy projects. The second section addresses Native American economic development, generally, focusing on practical sovereignty, capable institutions, and cultural match. The third section discusses solar energy projects: the benefits of solar energy when compared to other types of energy production; the ways that these projects will benefit Indian country specifically; and the rationale behind implementing solar energy projects as a means to sustainable economic development in Indian country. The fourth section will briefly discuss the question: Given the advantages of solar energy that the article advocates, why is the uptake in Indian country not already prolific?

In November 2012, he published "Alternative Energy in American Indian Country: Catering to Both Sides of the Coin," in the latest edition of Energy Law Journal.

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. He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Fiscal Cliff Bill Affords Indian Country Tax Relief, Suprisingly

As Indianz.com reports, the "fiscal cliff" bill includes several provisions that are designed to stimulate employment and economic opportunities in Indian Country. The Indian Employment Tax Credit, which encourages businesses to hire tribal members and their spouses, expired in December 2011 but is now retroactivated to 2012 and extended until the end of 2013.

The Accelerated Depreciation Incentive, which helps businesses locate on Indian lands, also expired in December 2011 but also received a two-year extension, until the end of 2013.

A production credit for coal facilities that were placed in service in Indian Country before 2009 was also extended until January 2014.

The New Market Tax Credit Program was extended through the end of 2013, with $3.5 billion in tax credits allocated for each year.

At the original request of the U.S. Department of the Interior’s Office of Indian Energy and Economic Development, Gabe Galanda has written a paper that explains the interplay of all of these and other tax advantages in Indian Country, titled, "The Business Case for Private Investment and Development in Indian Country." It is available here.

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.