Gabe Galanda Publishes on Legal History of Washington Tribal-State Relations

Gabe Galanda has published an article, "Galanda Washington Tribal-State Relations Bar Bulletin," in this month's King County Bar Bulletin, which is themed, "polarity." Dedicating the piece "to those Washington Indians who fought the fish wars and to the tribal lawyers who won the Boldt Decision," he recaps modern Indian legal history in Washington and concludes with criticism that the Washington Supreme Court's three most recent Indian law decisions are regressive.

Polarity accurately describes the historic legal relationship between the State of Washington and those Tribal Governments indigenous to our state. Tribal sovereignty, i.e., “the right of reservation Indians to make their own laws and be ruled by them,” has always been antipodal to state sovereignty as a matter of Anglo-American jurisprudence. So much so, that by the late 1800s nascent states were deemed the Tribes’ “deadliest enemies” by none other than the U.S. Supreme Court. And over the ensuing century, tribal and state governments waged a zero-sum battle over who would regulate Indian Country.

But today, in what is the era of Indian self-determination as a matter of both federal policy and tribal behavior, tribal/state opposition is waning. As noted by leading Indian law scholar, Professor Matthew T. Fletcher:

States and tribes are beginning to smooth over the rough edges of federal Indian law — jurisdictional confusion, historical animosity between states and Indian tribes, competition between sovereigns for tax revenue, economic development opportunities, and regulatory authority — through cooperative agreements. In effect, a new political relationship is springing up all over the nation between states, local units of government, and Indian tribes.

Washington tribal/state relations and the new political relationship between our state’s sovereigns are indeed evolving. Still, based on the Washington Supreme Court’s three most recent three Indian law decisions, more progress is required to achieve tribal/state congruity throughout official state policy. In particular, the increasingly cooperative relationship between the Tribes and State must be better appreciated when the Court next evaluates regulatory power or adjudicatory jurisdiction in Washington Indian Country.

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 can be reached at 206.300.7801 or

Nez Perce v. Megaloads: Another Treaty-Based Consultation Victory

On September 12, an Idaho federal district court stopped massive industrial equipment headed for the Alberta Tar Sands -- now commonly known as the Megaloads -- from traversing Nez Perce Treaty-protected ceded lands. The federal court's decision affirms the power of Indian Treaties and the intrinsic consultation requirements of those sacred pacts. Article III of the Treaty with the Nez Perces of 1855 reserved for Nez Perce Indians the “right of taking fish at all usual and accustomed places” and “the privilege of hunting . . . upon open and unclaimed land.” As the court explained: "Although the Nez Perce ceded the lands now encompassing the Nez Perce Clearwater National Forests to the United States, 'they did not relinquish rights to hunt, fish, and gather, or to practice traditional religious and cultural ceremonies on these ancestral homelands.'”

Critically, even though Article III of the Nez Perce Treaty does not mention the word "consultation," the federal court ruled that: The duty of the Forest Service to conduct a consultation after finding that the mega-loads might affect cultural and intrinsic values is commanded by Treaty rights" – "there is no discretion to refuse consultation." And "[w]hen the duty to consult runs to a Tribe, the federal agency generally must consult with the Tribe before taking the action at issue." Indeed, "meaningful consultation takes place “typically before undertaking a course of action” (emphasis in original).

The Nez Perce Megaloads decision is at least the second recent decision from the federal courts, affirming Treaty-based consultation requirements over ceded or off-reservation lands, even though the Treaty Articles at issue do not mention the word "consultation." In 2010, a Washington State federal court enjoined the United States from allowing a private garbage contractor from importing municipal waste from the Hawaiian Islands into the Yakama Nation's ceded lands and fishing, hunting and gathering areas. That court ruled that there were "serious questions about whether Defendants adequately consulted with the Yakama Nation as required by [Article III] of the Yakama Treaty of 1855," even though that Treaty Article, too, does not expressly require consultation.

Under international legal norms, "the treaty obligation to consult that is intrinsic in any bilateral agreement between nations." G. Galanda, "The Federal Indian Consultation Right: No Paper Tiger," Indian Country Today; see Restatement (Third) Foreign Relations Law of the United States §§ 325, 337 (1986).  When will the United States begin to truly honor this norm?  Indeed, Nez Perce v. Megaloads, like the Yakama Hawaiian garbage case and the Quechan solar power case, illustrate how even the "pro-tribal" Obama Administration will flout federal Indian consultation rights in order to cut red tape for, and otherwise fast-track, pet projects like Tar Sands.

In fact, when the political and economic stakes are high, and the choice must be made between siding with either mega-corporations, or Indians, the United States and its President will always -- ALWAYS -- side with almighty corporate interests, and ignore guaranteed Indian rights. That paradigm is nothing new to Indian Country; it has been happening for centuries. What is new is the United States talking out of both sides of its mouth about tribal consultation.

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.  He can be reached at 206.691.3631 or

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

Gabe Galanda Addresses NAFSA Regarding Tribal Online Lending Precautionary Defense Measures

Today, Gabe Galanda addressed the Native American Financial Services Association (NAFSA), in a presentation titled, "A Quick History Lesson: Foundational Elements of Tribal Sovereignty, Tribal Self-Governance and the Government to Government Mandate." He delivered his remarks (slides here) at the Tribal Government Online Lending Symposium Presented by the Online Lending Association and NAFSA. Gabe specifically discussed notions of inherent sovereignty and preemptive consultation as means of countervailing federal and state attacks against tribal online lending activities.

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

Has California Consulted With Tribes Regarding MPLA Closures?

California tribal members gathered to protest proposed MLPA closures on June 18, and they will raise their concerns at the California Fish & Game Commission (CFGC) meeting in Stockton on June 29-30. But has the CFGC consulted with California tribes regarding proposed restrictions on coastal gathering proposed under the Marine Life Protection Act (MLPA) Initiative? Make no mistake, even though California tribes' treaties weren't ratified, the state of California still must consult with those tribes regarding state laws and policies that will detrimentally impact the tribal religious, cultural and subsistence practices of gathering food from the sea.

Government-to-government consultation is a fundamental aspect and necessary component of tribal sovereignty that has never been extinguished – explicitly or implicitly – by the federal government. California tribes should demand consultation from CFGC regarding the proposed coastal gathering restrictions, to the extent the state has not yet provided that opportunity to affected tribes.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or, or via

Nice Try, DOI

On January 14, the Department of Interior (DOI) issued a draft agency policy on consultation with Indian tribal governments, as required by President Obama’s Nov. 5, 2009 White House Memorandum on Tribal Consultation. The draft includes the following "DISCLAIMER":

Except to the extent already established by statute, this Policy is intended only to improve the internal management of the Department, and is not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law by a party against the Department or any person. The Department also does not waive any applicable privilege that it may hold by virtue of this Policy.

This disclaimer language is designed to insulate the Department from legal liability for any of its agencies' failure to meaningfully consult with tribes. Yet if the disclaimer withstands tribal comment and ends up in the adopted policy -- it should not -- it will fall short in circumscribing a DOI agency's liability for failing to consult.

That is because as already established by federal common law, the United States' trust responsibility includes an obligation to consult with tribal governments. Indian Treaties likewise require consultation, as does the United Nations Declaration on the Rights of Indigenous People, which the U.S. recently endorsed.

So while the disclaimer might operate to militate against a tribal consultation claim against a DOI agency under the APA, aggrieved tribes can still sue that agency for equitable relief to enjoin federal action pursuant to, inter alia, Indian Treaty and trust doctrine.

For additional information, see The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or, or via

Mega Solar Power Development Stopped for Failure to Consult

On December 15, a Southern California Federal District Court enjoined the United States from allowing the development of a large solar power project to proceed, because the U.S. Department of Interior's Bureau of Land Management failed to properly consult with the Quechan Tribe. The project is proposed for development in Southern California's Imperial Valley; on federal lands off of the Quechan Reservation but amidst hundred of tribal sacred sites. In a sweeping decision, the District Court ruled that the United States' so-called consultation efforts with the Quechan Tribe, as required by the National Historic Preservation Act (NHPA), among other federal laws, were wholly inadequate:

In other words, that BLM did a lot of consulting in general doesn't show that its consultation with the Tribe was adequate under the regulations. Indeed, Defendants' grouping tribes together (referring to consultation with "tribes") is unhelpful: Indian tribes aren't interchangeable, and consultation with one tribe doesn't relieve the BLM of its obligation to consult with any other tribe that may be a consulting party under NHPA.

The District Court further observed:

BLM's invitation to "consult," then, amounted to little more than a general request for the Tribe to gather its own information about all sites within the area and disclose it at public meetings. . . . While public informational meetings, consultations with individual tribal members, meetings with government staff or contracted investigators, and written updates are obviously a helpful and necessary part of the process, they don't amount to the type of "government to government" consultation contemplated by the regulations. This is particularly true because the Tribe's government's requests for information and meetings were frequently rebuffed or responses were extremely delayed as BLM-imposed deadlines loomed or passed.

According to the ruling, the private energy developer hoped to qualify for stimulus funds under the American Recovery and Reinvestment Act of 2009 by beginning construction by the end of 2010. "To that end, BLM apparently imposed deadlines of its own choosing," the Court observed.

Because of the large number of consulting parties (including several tribes), the logistics and expense of consulting would have been incredibly difficult. None of this analysis is meant to suggest federal agencies must acquiesce to every tribal request. That said, government agencies are not free to glide over requirements imposed by Congressionally-approved statutes and duly adopted regulations. The required consultation must at least meet the standards set forth in 36 CFR 800.2(c)(2)(ii), and should begin early. The Tribe was entitled to be provided with adequate information and time, consistent with its status as a government that is entitled to be consulted. The Tribe's consulting rights should have been respected. It is clear that did not happen here.

Presumably, without federal stimulus funds, the future of this high-profile Southern California solar energy project is in doubt.

Despite President Obama's November 5, 2009 Tribal Consultation Memorandum, and in turn various federal agencies self-touted efforts to consult with Indian tribes on tribal consultation, the District Court's ruling is at least the second such decision against the United States resulting from the Feds' failure to consult with Indian tribes regarding federally-backed private development projects, in the latter half of 2010.

In August, in Confederated Tribes and Bands of the Yakama Nation v. U.S. Dept. of Agriculture, the federal Indian consultation right was successfully wielded before a Washington State Federal District Court to put halt the USDA's efforts to allow a private contractor to import solid waste from the Hawaiian Islands, into Yakama ceded lands and historic fishing, hunting and gathering areas.

One can only hope that a third strike against the Obama Administration is not required before the Federal Government truly appreciates its abiding obligation to consult with tribal governments in any matter of tribal implication -- and the disastrous economic and non-economic consequences for its failure to consult.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or, or via

U.S. Endorses International Indigenous Consultation Norm

Today, the United States officially endorsed the United Nations Declaration on the Rights of Indigenous People. In doing so, the United States endorsed the international legal norm of consultation with indigenous, including American Indian, people, embodied various Articles in the Declaration, most notably Articles 18 and 19:

Article 10 Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 11 1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 28 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

On top of various federal laws, including Indian Treaties, Presidential Executive Orders and Memoranda, statutes, regulations and federal agency policies and protocols, and the federal common law, as well as international Treaty norms, the Declaration entrenches the United States' obligation and commitment to government-to-government consultation with American Indian tribal governments.

Tribal governments should invoke any or all such federal laws, as well as the Declaration, when government-to-government consultation is next required of the United States. For additional information, see The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or, or via