Furthering the Case for Tribal Legalization of Marijuana

Two February 20, 2011 national news stories further suggest that it is time for Indian Country to begin seriously engaging in the state-federal debate about legalizing, regulating and taxing marijuana. From the Oklahoman, "How $31 of pot gave mom a 10-year-prison sentence":

Because of $31 in marijuana sales, Patricia Marilyn Spottedcrow is now serving 10 years in prison, has been taken away from her four young children and husband, and has ended her work in nursing homes.

Tragically, Patricia Marilyn Spottedcrow is not the only poor Native American who has had to resort to selling illegal contraband to support her family, and whose family was shattered by the failed effects of the war on drugs. Accordingly, some tribal governments have already taken the matter of marijuana legalization and regulation into their own hands. Other tribes have considered doing so but decided marijuana was and is not part of tribal ways.

From the notoriously conservative Seattle Times editorial board, "The Washington Legislature should legalize marijuana":

MARIJUANA should be legalized, regulated and taxed. The push to repeal federal prohibition should come from the states, and it should begin with the state of Washington. . . .

[I]n America, prohibition is the pursuit of the impossible. It does impose huge costs. There has been:

• A cost to the people arrested and stigmatized as criminals, particularly to students who lose university scholarships because of a single conviction;

• A cost in wasted police time, wasted court time and wasted public resources in the building of jails and prisons;

• A cost in disrespect for the law and, in some U.S. cities, the corruption of police departments;

• A cost in lost civil liberties and lost privacy by such measures as the tapping of private telephones and invasion of private homes;

• A cost in the encouragement of criminal lifestyle among youth, and the consequent rise in theft, assault, intimidation, injury and murder, including multinational criminal gangs; and

• A cost in tax revenues lost by federal, state and local governments — revenues that for this state might be on the order of $300 million a year.

Some drugs have such horrible effects on the human body that the costs of prohibition may be worth it. Not marijuana. This state's experience with medical marijuana and Seattle's tolerance policy suggest that with cannabis, legalization will work — and surprisingly well.

Not only will it work, but it is coming. You can feel it.

To the extent consistent with tribal ways, tribal governments should draft behind the states in the push to repeal federal prohibition, and stand ready to legalize, regulate and tax (or tax exempt) marijuana under tribal law when that day comes.

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 gabe@galandabroadman.com, or via galandabroadman.com. This information is not intended to create an attorney/client relationship and shall not be construed as legal advice.

Native American Religious Freedom Issues in the Washington State Prison System

Please Join The Center for Indian Law and Policy, Fred T. Korematsu Center, Access to Justice Institute, Admissions and the Native American Law Student’s Association for the following program:

Protecting the Right of Native and Indian Inmates Incarcerated in the State of Washington Prison System to Engage in Traditional Ceremonies and Religious Practices

Tribal Leaders, Practitioners from the ACLU, Galanda Broadman and the Assistant Secretary of the Department of Corrections will discuss the efforts that are underway to ensure that Native and Indian inmates have the opportunity to practice their religion and to have access to traditional religious leaders.

March 28, 2011 3:00 PM – 5:00 PM School of Law 2nd Floor Gallery

All are welcome to attend. A reception with traditional food will follow.

RSVP to Guadalupe Ceballos at (206) 398-4284 or CILP@seattleu.edu

Download the the flyer here.

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 gabe@galandabroadman.com, or via galandabroadman.com.

Gabe Galanda: "The State Tax Man Cometh"

The Indian Country Today Media Network has published a column by Gabe Galanda, "The State Taxman Cometh."

[T]ribal governments and their business partners must redouble their efforts to prevent taxation by the state and its little sibling. Indian leaders should reevaluate the terms of their revenue allocation plans and business partnerships, and related tax laws, to ensure tribal intramural and external dealings are insulated from non-tribal taxation. Tribal laws should be amended and business deals restructured as necessary. Policies of tribal taxation, or not, should also be reexamined, insofar as tribal excise taxation of various reservation-based economic activities will create factors that militate against state or local taxation.

In 2011, the state taxman cometh. Indian country, be prepared.

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 gabe@galandabroadman.com, or via galandabroadman.com.

AMERIND Should Clearly Waive Its Immunity in Insurance Contracts

Today's Eighth Circuit Court of Appeals decision in AMERIND v. Malaterre is significant. AMERIND is a federally-chartered Section 17 corporation, owned by a consortium of tribes, which operates a self-insurance risk pool and is the biggest insurer of tribal homes in Indian Country. According to AMERIND's web-site, its "IHBG Protection Program currently serves over 275 housing authorities and tribal designated housing entities in the United States."

While the court's holding that AMERIND "serves as an arm of the [Charter Tribes] and not as a mere business and is thus entitled to sovereign immunity" is a resounding affirmation of tribal immunity, especially for Section 17 entities and multi-tribal consortia, the ruling could potentially render the various AMERIND property insurance policies unenforceable. As such, on a go forward basis AMERIND should include in all of its policies, language that would operate to clearly and unequivocally waive its immunity, in limited fashion, with regard to claims by tribal insureds for insurance coverage.

There are many ways to craft limited immunity waiver language that will insulate the company from undue litigation attack, e.g., the direct action lawsuit underlying Malaterre, yet assure tribal insureds that their covered losses will be paid. I hope AMERIND will allow, or continue to allow, due recourse against its tribal policies notwithstanding its momentous court victory today.

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 gabe@galandabroadman.com, or via galandabroadman.com.

Yakama-White Swan Wild Fires Disaster Relief

Consider this Yakima Herald headline:

White Swan fire aftermath: 'We have nothing' White Swan residents return to scene of massive blaze, called the county's worst: 'No place has lost 20 homes'

Donations for the Yakama-White Swan families: Household items/toys can be brought to the Toppenish Armory, 326 S. Division St., Toppenish, WA 98948. Non/perishable food can be delivered to the 14 Tribes Room at Yakama Heritage Restaurant, 280 Buster Rd., Toppenish, WA 98948.

For folks in Seattle, the Seattle Indian Health Board will collect donations at the Pearl Warren Building, 606 12th Avenue S., Seattle, WA. Contact LaVerne S'eiltin Wise to make arrangements: 206-834-4001.

Monetary donations can be made at any Bank of America branch, payable "Confederated Tribes & Bands of the Yakama Nation - White Swan Relief Fund," or mailed to Yakama Nation CFO Henry Roy, PO Box 151, Toppenish, WA 98948. Tribal switchboard: 509-865-5121.

ATNI Calls For More Action By The Obama Administration On Indian Consultation

On February 3, 2011, the 57 tribal governments from Oregon, Idaho, Washington, southeast Alaska, Northern California and Western Montana that comprise the Affiliated Tribes of Northwest Indians (ATNI), passed a Resolution, reciting that:

[T]he federal Indian consultation right requires the United States and its agencies, as well as states and local governments, to meaningfully consult with tribal governments, on a government-to-government basis, regarding any matter of tribal implication, in order to allow any affected tribal government to express its views and assert its rights in advance of any non-tribal governmental action or decision-making.

In reference to President Obama’s Executive Memorandum, ATNI proclaimed:

[M]any federal agencies have yet to comply with President Obama’s Memorandum by promulgating a detailed plan of action to implement Executive Order 13175 and in turn honor the federal Indian consultation right; and . . .

[M]any federal agencies, as well as state and local governments, continue to breach the federal Indian consultation right, as well as related Treaty, trust and other guaranteed tribal rights and federal responsibilities, by failing to meaningfully consult with tribal governments regarding matters of tribal implication.

To give but one example, Obama’s Labor Department and its various agencies have yet to promulgate an action plan or set of policies regarding tribal consultation. Given President Obama’s campaign accord with labor interests to advance employee rights, Labor’s agencies increasingly seek to exert federal regulatory power over tribal government, casino and other employers. That political convergence represents the proverbial perfect storm for the next federal appellate court decision thrusting so-called federal laws of general applicability upon Indian Country.

Appreciating that reality, ATNI resolved that it and its 57 member tribes, along with the National Congress of American Indians, will “immediately request that the White House, including the Domestic Policy Council and Office of Intergovernmental Affairs, cause any federal agency that has not yet complied with President Obama’s Memorandum by promulgating a detailed plan of action to implement Executive Order 13175, to do so immediately.” Other tribes should join ATNI and NCAI in seeking to hold any delinquent federal agencies accountable regarding the Indian right of consultation.

ATNI's Resolution was prompted by Gabe Galanda's presentation, "The Federal Indian Consultation Right: Exercising It."

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 gabe@galandabroadman.com, or via galandabroadman.com.

Anthony Broadman Answers Anew the FAQ: Can a Tribe Declare Bankruptcy?

Anthony Broadman has published, Indian Self-Governance and Bankruptcy: The Case for Tribal Law in the February 2011 edition of Casino Enterprise Magazine. Anthony takes a unique look at the legal possibilities associated with tribal bankruptcy.

The current economic climate has triggered speculation regarding how tribal gaming operations would navigate the bankruptcy process. Fanned by the bankruptcy of Greektown Casino Hotel (once partially owned by a tribe) and the Wells Fargo/Lac du Flambeau debacle, that speculation, coupled with cases abrogating tribal sovereign immunity in the bankruptcy context, suggests that tribes should at least attempt to control their exposure to insolvency by (1) legislating tribal approaches to bankruptcy and (2) contracting with potential future creditors and potentially tribal debtors regarding a common treatment for bankruptcy in Indian country. If federal bankruptcy laws do not work for tribe-owned businesses, tribal bankruptcy laws should.

Anthony Broadman is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  His practice focuses on company-critical business litigation and representing tribal governments. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or via galandabroadman.com.

Washington State Bill Seeks to Exempt Local Governments from Indian Grave Protection

House Bill 1713 seeks to categorically exempt city and county development or redevelopment efforts from compliance with the State Environmental Policy Act (SEPA). Among other environmental protections, this bill could allow cities and counties to sidestep protocols intended to protect Indian burial grounds, graves, skeletal remains and relayed cultural patrimony pursuant to the State Indian Graves and Records Act, RCW 27.44. Washington Indian tribes should categorically oppose House Bill 1713. 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 gabe@galandabroadman.com, or via galandabroadman.com.

More on the Preservation of Indian Law on the Washington Bar Exam

According to draft minutes from the Washington State Bar Association Board of Governors meeting in Olympia, on January 27, Indian law was specifically preserved as an examination topic notwithstanding the adoption of the Uniform Bar Exam (UBE).

Governor Etengoff moved that the WSBA adopt as the Washington State Bar Exam the UBE, consisting of the Multistate Bar Exam-multiple choice exam (MBE), the Multistate Performance Test (MPT), and the Multistate Essay Exam (MEE), along with a Washington Educational Component Test (WECT), which will include Indian Law and other subjects particular to Washington State, and which consists of an online/course materials and online multiple choice exam, and also adopt the Multistate Professional Responsibility Exam (MPRE) as Washington’s’ Professional responsibility exam.

Loren moved to amend his motion to be effective as of the summer exam 2013.  Motion to amend passed unanimously with a vote of 13-0-0.  He later stated that he is agreeable to implementation happening sooner if that is a possibility.

Governor Leishman moved to amend Governor Etengoff’s motion to provisionally include the Missouri-style exam as WSBA’s test of Washington state competency in the summer exam 2013, but direct staff to evaluate alternatives for testing on Washington state competency.  Motion to amend passed 11-2-0.  Governors Moore and Palace opposed.

Governor Etengoff’s original motion, as amended, passed 11-0-2.  Governors Buri and Flood abstained.  Governor Lee was not present for the votes on the Washington State Bar Exam.

In addition to strengthening state-tribal relations in Washington State, the Board's decision further recognizes the vitality of Indian law in Washington's legal system and civil society.

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 gabe@galandabroadman.com, or via galandabroadman.com.

WSBA AFFIRMS Washington State-Tribal Relations!

Yesterday, the Washington State Bar Association (WSBA) Board of Governors affirmed a 2004 Board decision to add federal Indian jurisdiction to Washington's bar exam, by adopting a customized version of the Uniform Bar Exam, effective 2013, which will still include Indian law. Washington Tribal leaders had passionately urged the Board to maintain Indian law as a state bar exam topic, as it has been since 2007.

According to a letter from Affiliated Tribes of Northwest Indians President and Swinomish Indian Tribal Community Chairman Brian Cladoosby to the Board and the Deans of the three Washington State law schools, in October 2010:

I and my tribal leader colleagues are very pleased that since the State Bar Governors resolved to test federal Indian law on our state’s exam, we have begun to see a noticeable change in understanding and attitude among the public and private legal practitioners we interact with on a routine basis. We tribal leaders and our lawyers now spend less time in discussions with other governmental leaders and lawyers having to lay the foundation of tribal sovereignty and jurisdiction. The role of tribes in the governmental structure of our nation seems to be both better understood and accepted. This often allows us to get on with discussing the substance of our differences, so we can work towards agreement and consensus with the state and local governments as well as private entities. That benefits the all of our Tribes’ and our State’s citizens

Indian law is too important a topic to be eliminated or relegated to something other than the State bar exam. Federal Indian law is right where it belongs: on the Washington State bar exam and at the forefront of the minds of our State’s lawyers and the hearts of Washington’s tribal citizens.

In July 2010, Washington Indian Gaming Association President and Jamestown S'Klallam Tribal Chairman Ron Allen also wrote to the Board and local law school Deans:

The inclusion of Indian law on our State’s bar exam is a big deal to Indian Country. . .

Over the course of my nearly forty-year career in state, regional and national Indian politics, I have witnessed Washington State evolve towards the forefront of tribal/state relations. The Board of Governors’ decision in 2004 was another example of our State’s leadership in that regard. . . .

As a longtime elected Tribal leader, I feel an increasingly strong sense of a reciprocity and comity between our Tribal Governments and Washington State with regard to the inclusion of Indian law on the state bar exam – a feeling that must be honored, cherished and protected by us all of us in leadership positions for sake of our citizens and constituents.

I hope you will maintain federal Indian law as a topic on the Washington State bar exam.

Washington State Attorney General Rob McKenna joined Chairman Cladoosby and Allen in late 2010, urging the Board to keep testing Indian law on Washington's bar exam.

The central premise of the Board's decision to add the topic in 2004 was that "the integrity and competence of the legal profession in this state would be enhanced if attorneys licensed by the WSBA generally understood significant federal Indian jurisdictional principles." By affirming that decision, not only has the Board strengthened state-tribal relations in Washington State but the Board has bolstered the State Bar Association's core mission: to ensure the protection of the public -- Native and non-Native citizens alike.

(Yesterday, based on a social media posting from the Governor's meeting, that the "WSBA Board of Governors voted today to replace essay-only WA bar exam with uniform exams beginning by 2013," I erroneously reported that Indian law was left on the cutting room floor. My apologies to the Board and to anybody confused by my NPR-style reporting.)

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 gabe@galandabroadman.com, or via galandabroadman.com.