Arbitration in Indian Country: Taking the Long View

Gabe Galanda has published “Arbitration in Indian Country: Taking the Long View”, in the current edition of the American Arbitration Association's Dispute Resolution Journal.

By agreeing to private arbitration, however, tribes do not cede litigation or settlement leverage to non-tribal opponents who know tribes are increasingly fearful of litigating and losing again in state or federal court and thereby creating bad law for all tribes.

He will be speaking from that paper at Seattle University Law School on March 18 at a symposium, “ADR’s Role in Resolving Indian Disputes: A Tangled Net or A Connected Web?”

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.

Tribal Mediation and Arbitration: Tangled Net or Connected Web?

Gabe Galanda will be speaking at Seattle University Law School on March 18 at a symposium, “ADR’s Role in Resolving Indian Disputes: A Tangled Net or A Connected Web?” The day-long symposium will bring together arbitrators and mediators, tribal attorneys, scholars and judges, and attorneys representing non-Indian commercial clients to discuss the role and proper use of mediation and arbitration to settle Indian Country-based disputes, particularly those involving non-Indian parties.

Gabe will speak at 9:30 AM, regarding “The role of 3rd party alternative dispute resolution (ADR) in resolving disputes between Indian and non-Indian parties.” His comments will be based on his article in the current edition of Dispute Resolution Journal, published by the American Arbitration Association (AAA), titled, “Arbitration in Indian Country: Taking the Long View.”

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.

Economic Issues Affecting Indian Gaming

Gaming Law Review & Economics has published a note, "Economic Issues Affecting Native American Gaming," featuring Gabe Galanda's remarks during a roundtable discussion last fall regarding economic issuing impacting the $26.5 billion Indian gaming industry. On the state of Indian gaming markets vis-a-vis that of domestic commercial gaming meccas:

[T]he New York Times wrote about this phenomenon, indicating that Reno and Lake Tahoe are seeing their revenues erode by as much as 25%–40%. That is juxtaposed with places like the Pacific Northwest, which are seeing modest, perhaps even healthy, growth during the same time period.

On the state of tribal financing:

[Y]ou are seeing that gaming tribes can only take out bank debt based on 2 to 2.5 times historical EBITDA, meaning proven cash flow. You once were able to leverage, very favorably, relatively unproven cash flows. Now though, unless you have historical, proven cash flow, you are going to have a very difficult time obtaining any money, and what money you are going to be able to obtain is probably far less—and it will cost you far more— than in prior years.

On the state of Indian gaming contracting:

There are a number of contracts, both in form and substance, that pertain to Class II or Class III gaming—most notably, those for gaming machines. We are now seeing the same type of financial scrutiny of deal terms in these contracts that we are talking about in regard to significant financing or restructuring transactions. We are seeing that scrutiny of what historically have been almost boilerplate agreements between tribal casino operators and their business partners . . .

On the states' budget crises:

[T]here is an estimated $112 billion shortfall amongst the states collectively. I will tell you that on the ground, in the offices of state or local assessors, there are government officials who are looking perhaps beyond the casino itself, the monies flowing from that particular casino and the properties within that casino, but still towards the tribe, to figure out how they can get their hooks into gaming proceeds running to the tribal government.

On state Class III gaming "fees" in lieu of taxes:

[W]e will see state governments in particular trying to develop new ways of imposing fees on gaming activities in circumvention of the stated intent, purpose, and spirit of IGRA, in desperate attempt to balance hemorrhaging state budgets.

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.

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.