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.

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. 

Puff, Puff, Tax: I-502 and Washington Indian Country

Washington state’s legalization and regulation of marijuana will be hazy for some time. But the effects of Initiative 502 in Washington Indian Country promises to be cloudier than throughout the rest of the state. Setting aside the social issues that all of Washington will be dealing with as pot becomes a mainstream recreational drug à la tobacco and alcohol, the taxation of pot in Indian country, if it can even be sold on Reservations, promises a host of issues that we’ll be working through well into the next election cycle. Issue No. 1: Tribal Prohibition

Tribes can and increasingly do prohibit marijuana on their reservations. While tribes lack criminal jurisdiction over non-Indians, through their civil authority, tribes could attempt to regulate pot traffic and use because it “threatens or has some direct effect on the political integrity, economic security, or the health and welfare of the tribe.” Montana v. United States, 450 U.S. 544, 566 (1981). If tribes do so, and if the Liquor Control Board’s forthcoming pot-licensing regulations mirror liquor regulations (where local governments can object to licenses), many of these taxation issues will be academic.

Issue No. 2: Federal Law

If Washington tribes follow the state’s lead and decriminalize pot within their jurisdictions, federal interference remains likely. In recent years, tribal flirtation with medical marijuana has garnered unintelligible but angry responses from the Department of Justice. Marijuana remains a controlled substance under federal law, everywhere. But the fact that Indian reservations comprise often largely federal land makes them awkward places to sell drugs that are legal under state law (which doesn’t apply) and illegal under federal law (which is often unenforced).

Issue No. 3: Reservation-based Value

In Washington, 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). This means that food harvested from Indian lands or prepared at a tribal facility and sold to nonmembers would be untaxed. Id. at (a)(i); cf. Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1044 (9th Cir. 2000) (dicta); California v. Cabazon Band of Mission Indians, 480 U.S. 202, 220 (1987); Indian Country, U.S.A., Inc. v. Oklahoma, 829 F.2d 967, 986 (10th Cir. 1987); Conn. Legal Ruling No 2002-3 (May 29, 2002).

In other words, if a Tribe adds value to a product and sells it on the Reservation, it shouldn’t be taxed. In a vacuum this means that tribally or tribal-member grown pot sold on the Reservation will not be subject to state taxes. If state-regulated pot is actually a feasible business endeavor and not irrelevant because of the black market, untaxed on-Reservation sales could severely undercut off-Reservation sales, which will carry a 25% tax.

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Whatever form Washington Liquor Control Board pot regulations take when they are published, Washington Indian Country should remain vigilant to ensure that its interests are taken into account – whether tribes wish to fight pot on the reservation, or to regulate and tax it.

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.

Rob McKenna: Tribal Friend or Foe?

In a recent University of Miami Race and Social Justice Law Review article, I discussed Senate Bill 1925, a version of Violence Against Women Act that attempts to reauthorize tribal governments’ exercise of criminal jurisdiction over certain non-Indians who violate Indian women.  Regarding the State of Washington’s various political players’ stances on the issue of tribal governments’ abilities to protect Native women, I wrote:

Washington’s Senator Patty Murray (D-WA) has . . . vowed to reject any agreement with the House that does not include the tribal [jurisdiction] provisions, as has Fellow Washingtonian Senator Maria Cantwell (D-WA). . . . At the same time, Washington State Republican gubernatorial hopeful Rob McKenna advocates for mere “tribal civil authority” over non-Indian[s], stopping short of recommending the jurisdictional power that is needed to bring criminal justice – and safety – to Indian Country.  While Attorney General McKenna is at least addressing the issue with some thought, which is much more than can be said of his fellow GOPers, fines and civil restraining orders are not adequate responses to reservation murder, rape, and sexual assault.  McKenna’s gubernatorial opponent, Congressman Jay Inslee (D-WA), on the other hand, actually introduced the Stand Against Violence and Empower Native Women Act, H.R. 4154, 112th Cong. (2012), this March.  The bill tracks S. 1925 almost word for word.

Not long after publication of this article, I was contacted by Attorney General McKenna’s office with the following email:

Attorney General McKenna[’s position] on the issue . . . is a great deal more detailed than your piece gives him credit for.  I do appreciate the fact that you give him some credit for working to prevent violence against native women.  Preventing DV and sexual assault against all women has been a priority for Rob McKenna predating his time as AG and has been a personal passion of his as a long-time supporter of the Eastside Domestic Violence Coalition.

 To which I replied:

I agree that tribal civil jurisdiction over non-Indians should be explicitly recognized by Congress in all situations of DV in Indian Country.  Although tribes already have this power, [but see Martinez v. Martinez, No. 08-5503, 2008 WL 5262793 (W.D. Wash. Dec. 16, 2008)], the explicit recognition of this in the VAWA will likely support the imposition of jail time for civil contempt findings and getting civil orders recognized by other jurisdictions.  This is a very important recognition of tribal sovereignty, and I applaud Mr. McKenna for his stance on this issue.

It is apparent, however, that Mr. McKenna supports only tribal civil jurisdiction over non-Indians, and not criminal jurisdiction. . . . McKenna does not take a position on criminal jurisdiction because of “vexing jurisdictional issues.”  I would submit that those jurisdictional issues are actually quite clear.

But maybe I am misunderstanding something.  Does Mr. McKenna support the criminal jurisdiction provisions of S. 1925?  More generally, does Mr. McKenna support tribal criminal jurisdiction over those who commit violence against Native women in Indian Country?

The Attorney General’s Office responded:

I will work with AG McKenna and our tribal issues lead, Deputy Attorney General Rob Costello, to address your questions and respond.  I don’t want to misspeak or mischaracterize AG McKenna’s position on such an important issue.  I did want to make sure you were aware of the letters he wrote which I read to say, “the debate over extending tribal criminal jurisdiction over non-Indians is one that will continue due to the complex civil rights issues involved and it may significantly delay other protections we CAN provide right now.”  I read his letter to say while Congress continues to debate over that issue—they should enact the civil protection order solution to provide some protection NOW—and greater ability to bring criminal action against non-Indians in US courts—while the debate continues.

Two weeks later I received the following email:

Upon review of the letters, I think they speak for themselves. Thank you again for recognizing Rob’s attempt to advance the issue to protect women from violence no matter where they live.

There you have it women in Washington's Indian Country, a solid non-responsive answer.

Here’s how the Tacoma News Tribune framed the VAWA issue in terms of the Inslee-McKenna Gubernatorial race: “Inslee pushed in Congress to let tribes prosecute non-Indians accused of domestic violence on reservations; McKenna prefers to leave such cases in the hands of federal prosecutors.”  And as Indian Country is well aware, if left in the hands of federal government, these crimes go unprosecuted and the assailants go free.  Indeed, a recent Report by the U.N. Special Rapporteur on the Rights of Indigenous Peoples says that legislation affirming criminal jurisdiction over certain non-Indian violators of Indian women should be an “immediate priority” in U.S.

In short,  Attorney General McKenna does not support limited tribal criminal jurisdiction over non-Indian domestic abusers.  It is not an "priority" for him; at least not an "immediate" one.  “Right now,” he instead supports the status quo, which has failed tribal communities and Indian women.  While he deserves credit for going further on this issue than most Republicans will – meaning at least admitting there is a violence against Indian women problem in Indian Country – McKenna is playing it far too safe for fear of offending his GOP base as he vies for the Washington Governor’s Mansion.  Congress, namely the House GOP, has no intention of genuinely debating the Senate’s VAWA reauthorization bill to passage, and he knows it.

Indeed, as local pundits  have suggested, Attorney General McKenna has played it altogether too safe on tribal issues with a view towards this gubernatorial election: “there’s a perception here that Mr. McKenna’s performance of his duties as attorney general has been influenced by the fact that he would like to have a less than adversarial relationship with the tribes come this election cycle.”

A recent study by Chuck Tanner and Leah Henry-Tanner likewise concludes that:

Rob McKenna is not . . . an ideologically driven political activist wholly dedicated to terminating Indian Nations and abrogating their treaties.  However, when legal gray areas exist (as they frequently do in federal Indian law), and Rob McKenna perceives a state interest at issue, . . . he will oppose the fundamental rights of Indian Nations and ally with anti-Indian activists to achieve his goals.

The question is now before Washington tribal voters: has Rob McKenna done enough for Indian Country?  Will he be a partner to tribal governments or is his Indian policy one of political expedience?  He had the opportunity to come out swinging against domestic violence in Indian Country – to hit an underhand softball – but he struck out looking.

Meanwhile, or “while Congress continues to debate over that issue,” Native women in Washington State remain virtually unprotected from domestic violence by non-Indians.

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.

Indian Country Today Publishes Anthony Broadman's "Roundup" of Recent 9th Circuit Tribal Cases

Anthony Broadman has published a roundup of court cases relevant to Indian country that wer recently decided in the Ninth Circuit.

Tribal Exhaustion Compelled, but Montana Exception Further Questioned: "[I}n Rincon Mushroom Corp. v. Mazzetti, No. 10-56521, 2012 WL 2928605 (9th Cir. July 19, 2012), a non-Indian owner of a fee simple parcel of land located on the Rincon Band of Luiseno Mission Indians’ reservation is challenging the tribe’s regulatory and adjudicatory authority to protect the reservation natural environment...."

Not All Unstamped Cigarettes are Contraband: "In United States v. Wilbur, 674 F.3d 1160 (9th Cir. 2012), the Ninth Circuit held that cigarettes sold by a tribally licensed retailer and pursuant to a state-tribe cigarette agreement are not contraband for purposes of the federal Contraband Cigarette Trafficking Act (CCTA) – even if they are contraband under state law...."

Save the Peaks Attorney Personally Sanctioned: "Last February, the Ninth Circuit held, in Save the Peaks Coalition v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012), that the U.S. Forest Service had complied with the requisite environmental regulations in issuing a special use permit...."

Alaskan Native Fishing Dispute Hinges On Historic “Exclusive Use”: "In a tense en banc decision, the Ninth Circuit held last month that although Chugach people continuously used and occupied part of the Gulf of Alaska, they do not now have aboriginal rights to hunt and fish the area because their historic use was not 'exclusive'..."

Anthony Broadman is a partner with Galanda Broadman in Seattle. His practice focuses on matters critical to Indian Country. He can be reached at anthony@galandabroadman.com.