Taking Government-to-Government Relationships to the Bank

After years of fighting the development of a Cowlitz governmental gaming facility tooth and nail – appealing BIA decisions, questioning the honesty of tribal officials, and even arguing that tribal members do not need jobs as much as non-Indians – local governments in Southwest Washington have finally agreed to negotiate with the Cowlitz Indian Tribe in a government-to-government fashion regarding their proposed plans for a casino. Because now the local governments want something. As reported by the Columbian:

[T]he Cowlitz Indian Tribe . . . is in talks to help La Center pay a portion of the tab for the sewer lines to the junction, in exchange for aid moving waste from its 152 acres of land west of I-5, city and tribe officials said. The Cowlitz tribe aims to build a casino on its land.

Six months after the La Center City Council voted to open talks with the tribe, leaders of both bodies said Tuesday that preliminary negotiations are going well and they hope they can forge a mutually beneficial relationship. That includes current talks about sewers, which have been ongoing the past month, and soon-to-come discussions on a new interchange off I-5 that would allow motorists easier access to the tribe’s land.

Such talks are significant considering the council and tribe did not officially speak about the proposed casino for four years after the council banned all dialogue with the tribe in 2007.

“I am quite surprised,” La Center Mayor Jim Irish said of negotiations, “considering we didn’t want to work with them in the past.”

This is nothing new. Slowly, local governments are coming to realize that working with tribal governments to find amicable solutions to mutual problems is much more beneficial than the zero-sum games of yesteryear.

In fact, even cash contributions are not off the table. Earlier this year, in New york, the Seneca Nation contributed over $1 million to a fund to help local government infrastructure; in California, the Yolo Indian Gaming Community Benefit Committee awarded over $200,000 in grants to local agencies affected by tribal gaming; in Michigan, the Saginaw Chippewa Indian Tribe distributed over $2.3 million to nearby schools and local governments; and here in Washington State, as reported by NPR,

Native American tribes . . . are bailing out financially troubled local governments. Most native tribes are still among the poorest communities in the U.S. But in Washington, casino revenue has allowed tribes to make big donations to school districts and even to fund local government positions.

Unlike state and local governments who have no qualms invading the sovereignty of other nations when their coffers run dry, tribal governments are on their own, looking inward for solutions – and finding them. Diversifying business; actively asserting tribal sovereignty; reinvesting in local economies; protecting areas of cultural significance; investing in clean energy; generally reevaluating the playing field – this is what’s going on in Indian country today. As state and local governments flail around aimlessly, wreaking havoc in Indian country and beyond, tribes are showing integrity. And as good neighbors, tribes are willing to lend a helping hand. Indeed, according to Melvin Sheldon, Chairman of the Tulalip Tribes, many tribes in Washington State are now “able to help out other communities. [F]or the tribes that can give . . . it’s a way to say hey, we've made it, and this is who we are.”

Local governments take notice: working with tribal governments is an idea that you can take to the bank.

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.

Beware: The Washington State Tax Man Cometh to Indian Country

Washington Indian Country, With the state down $1.4 billion in tax monies yet unable to raise taxes thanks to Tim Eyman, brace for continued tax attacks by Washington state and local government -- and dare I say, discussion of state-tribal gaming revenue sharing like never before.

The Washington State Tax Man Cometh. Be prepared.

Gabe

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.

Indian Law Attorney Anthony Broadman Elected Chair of the Washington State Bar Association Administrative Law Section

Anthony Broadman was elected as Chair of the WSBA Administrative Law Section at its annual meeting yesterday in Seattle. Anthony, a Partner with Galanda Broadman PLLC, a boutique Seattle law firm that he co-founded in 2011 with Gabe Galanda, will serve as Chair of the Section until September 2012. The Administrative Law Section serves the interests of public and privatesector attorneys who work with state, local and tribal government agencies, as well as administrative law judges, hearing officers, review officers and other judicial personnel.

Anthony’s practice focuses on representing tribal governments in jurisdictional and taxation disputes. His scholarship has focused largely on tribal interests and the law of administrative agencies. From 2007 to 2010, Anthony practiced at a medium-sized regional firm, focusing on litigating issues critical to tribes and businesses operating in Indian Country.

Anthony has appeared before Washington state trial courts, federal district courts, and tribal, state and federal administrative bodies. Anthony has diverse trial and litigation experience, ranging from arguing and obtaining an injunction against the U.S. Department of Agriculture in federal court, serving – successfully – as lead trial counsel for a Fortune 500 company in a Washington business dispute, to his jury trial defense of a public employer at the state trial court level. In 2010, Anthony was named a Rising Star by Washington Law & Politics magazine.

Anthony has previously served as Chair-elect, Treasurer, and Secretary of the Washington State Bar Association Administrative Law Section and is a Trustee of the Washington State Bar Association Indian Law Section. He is editor of the Indian Law Newsletter, published by the Indian Law Section and is admitted to practice in Oregon and Washington.

Galanda Broadman PLLC is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters. The lawyers of Galanda Broadman PLLC – Gabe Galanda, Anthony Broadman and Ryan Dreveskracht – earned their law degrees from the University of Arizona College of Law. For additional information about Anthony or Galanda Broadman, visit galandabroadman.com.

Seattle Indian Lawyer Gabe Galanda Named to Best Lawyers in America in Gaming and Native American Law

Gabriel “Gabe” Galanda has been selected by your peers for inclusion in the 2012 edition of The Best Lawyers in America® in the practice areas of Gaming Law and Native American Law. Gabe, an enrolled member of the Round Valley Indian Tribes, is a Partner with Galanda Broadman, PLLC, a boutique Seattle law firm that he co-founded in 2011. He has now been selected to The Best Lawyers in America® from 2007 to 2012. Gabe’s practice focuses on complex, multi-party litigation and crisis management, representing tribal governments and businesses. He is skilled at defending tribes and Indian-owned enterprises from legal attacks by local, state and federal governments, and representing plaintiffs and defendants in catastrophic personal injury lawsuits. Gabe also mediates and arbitrates disputes between tribal and non-tribal parties, including personal injury matters and conflicts between tribal and local, state or federal governments, as well as tribal intramural disputes.

From 2000 to 2010, Gabe practiced law with the large, regional corporate firm, where he was the youngest lawyer to ever be elected to the firm’s membership and to serve on the firm’s Board of Directors. In 2009, Gabe was named to the Puget Sound Business Journal’s “40 Under 40” list and to the National Center for American Indian Enterprise Development’s “Native American 40 Under 40” list in recognition of his status as an emerging leader in the legal industry. Washington Law & Politics magazine named Gabe to Rising Stars for 2002, 2004 to 2008 and 2010 to 2011, and also named him one of Washington’s four Leading Edge Litigators in 2003. He was awarded the Washington State Bar Association Young Lawyers Division’s Outstanding Young Lawyer Award, and the Northwest Indian Bar Association’s Native Justice Award, in 2004. Gabe was named as one of Seattle’s best Indian law attorneys by Seattle Metropolitan magazine, and one of the "Best Lawyers in the Puget Sound Region" by Puget Sound Business Journal in 2010.

Best Lawyers is regarded as the definitive guide to legal excellence in the United States. 

Gabe’s selection to Best Lawyers was based on a peer-review survey, which all told comprises more than 3.9 million confidential evaluations by top attorneys throughout the country.

Galanda Broadman is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters. For additional information about Gabe or Galanda Broadman, visit galandabroadman.com.

Ryan Dreveskracht Joins Galanda Broadman

Ryan Dreveskracht has been hired as an Associate by Galanda Broadman, PLLC, a Seattle-based law firm dedicated to representing American Indian interests. In August, Ryan completed a clerkship with Judge Kathleen Kay of the U.S. District Court for the Western District of Louisiana. Ryan received his L.L.M. in Sustainable International Development from the University of Washington School of Law, and his J.D. from the University of Arizona College of Law, where he also obtained a certificate in Indigenous Peoples Law and Policy. He holds a B.A. in Philosophy and Law, Society, and Justice from the University of Washington, and an A.A. from Lower Columbia College.

Ryan is a prolific legal scholar, having published several works regarding energy development, taxation, jurisdiction, and tribal-federal relations. He is the Managing Editor of the National Lawyer’s Guild Review. Ryan’s recent cutting-edge legal and economic scholarship includes:

• Washington State: Collect Your Own Taxes – That’s Where the Money’s At, The Circle: News From a Native American Perspective, August 15, 2011 • The Shifting Tide of Economic Policy: Will Indian Country Be Left to Drown?, Indian Country Today, April 7, 2011 • Native Nation Economic Development via the Implementation of Solar Projects: How to Make it Work, 68 Washington & Lee Law Review 27 (2011) • Tribal Court Jurisdiction Stripping and Native Nation Economies: A Trip Down the Rabbit Hole, 68 National Lawyers Guild Review 65 (2011) • The Impact of Digital Technology on Indigenous Peoples, in Robert A. Hershey, EcoLiterateLaw: Globalization and the Transformation of Cultures and Humanity 114 (2010)

Galanda Broadman is a majority Indian-owned law firm that represents tribal governments, businesses and members in critical litigation, business and regulatory matters.

Peru: Vanguard In Indigenous Land Consultation

States and the federal government could take a lesson from Peru, which recently passed a law guaranteeing indigenous communities the right to be consulted about development on their lands. Peru President Ollanta Humala signed the law requiring companies to seek agreement with rural communities for projects that affect communities or ancestral territories. The former president of Peru had blocked a similar law, claiming that it would chill investment. Besides respecting the inherent right of tribes to be consulted regarding their sovereign interests, states, and the federal government should recognize what President Humala rightly observed: consultation laws reduce conflicts between industry and indigenous peoples. Rather than chilling investment, such laws encourage it. 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 or via galandabroadman.com.

Whither Hot Pursuit?: Eriksen's Silver lining

On September 1, 2011, the Washington State Supreme Court issued what seems, at first glance, to be a striking blow to the tribal police power. In State v. Eriksen, No. 80653–5, 2011 WL 3849504 (Wash. Sep 01, 2011), the Court ruled quite simply that Tribal police officers do not have the authority to stop and detain suspects off of the Reservation:

The inherent sovereign power [to stop a non-Indian driver on a public road within the reservation and detain him until state officers arrive] does not logically extend beyond reservation boundaries.   The State is correct that preventing tribal police from stopping and detaining drivers off the reservation would “undercut the Tribe's ability to enforce tribal law” by encouraging drivers to race for the reservation border and escape detention. . . . While this is troubling on a policy level, the concept of territorial jurisdiction necessarily limits any sovereign’s ability to fully enforce its laws.

Id. at *3.  Using the example of an adjacent state’s authority to do the same, the Court then cited to State v. Barker, 25 P.3d 423 (Wash. 2001), where it held that:

Oregon’s ability to enforce its traffic code was undercut when we held that an Oregon officer could not stop and detain an offender who crossed the state border.  That impediment to enforcement alone did not mean that Oregon’s sovereignty was compromised.  Rather, the limitation on Oregon’s authority to enforce its laws flowed necessarily from Oregon’s own geographic boundaries.

Id. at *4.

Eriksen had a very odd procedural posture.  In 2009, the Court approved the use of off-Reservation Tribal police power in these circumstances, holding that, based upon the “inherent power of [tribal] self-governance, which includes the power to prescribe and enforce internal criminal laws,” tribal governments have the authority “to enforce [their] laws by continuing the ‘fresh pursuit’ of suspects off the reservation and then detaining these suspects until authorities with jurisdiction arrive.”  State v. Eriksen, 216 P.3d 382, 387, 393 (Wash 2009).  The appellant then moved for reconsideration, and in 2010 the Court again held that tribal governments possess the “sovereign authority [to] detain . . . non–Indian offenders who violate traffic laws until state authorities can assume custody.”  State v. Eriksen, 241 P.3d 399, 403 (Wash. 2010) (en banc).  The plaintiff then moved to reconsider a second time, which resulted in the immediate case overruling the other two.

Professor Fletcher rightly asks in his post on Turtle Talk, “[f]irst it was 9-0, then 6-3, and now 6-3 the other way.  What happened?”  What did happen?  Or, more importantly, what does this ruling mean for Washington State Tribes?

The unfortunate consequence of this ruling, as noted by one of the dissents, is that it gives incentive for anybody being pursued by Tribal police to make a hazardous run for the boarder.

However, upon further appraisal, the decision has its upsides too.  First, it shows that the Washington State Supreme Court is willing to entertain a true government-to-government relationship with tribes when it comes to the Tribal police power.  The discussion of Oregon’s police power was not happenstance.  Just as “the limitation on Oregon’s authority to enforce its laws flowed necessarily from Oregon’s own geographic boundaries,” Washington State does not have the authority to cross into Oregon and enforce its laws.  It follows, then, that the same is true on the Reservation.  Implicitly, Eriksen stands for the proposition – indeed, a chestnut rule that has lately been ignored by some state agencies – that Washington State agencies do not have any authority to cross into the Reservation in a law enforcement capacity.  Although in recent years some courts have attempted to whittle away at this rule, the Court’s opinion in Eriksen exhibits an eagerness to honor it.

Second, Eriksen provokes the necessity of expanding the authority of Tribal police in order to fill gaps in the State’s current crime control regime.  Particularly important here, litigation wise, was that the State and the tribe were working together.  The State argued that the tribes do have the power to enforce law outside of the Reservation.  Clearly, tribal jurisdiction in this instance is something that everyone (aside from the defendant) wanted.

Notably, Eriksen comes on the heels of the Oregon legislature passing a law that gives Tribal police the power lacking under Washington’s new judicially-derived rule.  SB-412, signed into law on July 22, 2011, modifies Oregon’s statutory definition of “police officer” to hinge on training, rather than the personal judgments of local sheriffs.  Under this law, Tribal police have the same authority as other Oregon police – on and off of the Reservation, and in-between.

Given the odd procedural history of the suit, one cannot help but wonder if the Oregon law isn’t the answer to the “what happened” question posed by Professor Fletcher.  More importantly, one can only hope that the Washington State legislature views the decision in this light. As it currently stands, Wash. Rev. Code Ann. § 10.92.020 does allow that “[a] tribal police officer recognized and authorized to act as a general authority Washington peace officer under this section has the same powers as any other general authority Washington peace officer to enforce state laws in Washington, including the power to make arrests for violations of state laws.”  That power is limited, however, in that it “coextensive with the exterior boundaries of the reservation, except that an officer commissioned under this section may act . . . beyond the exterior boundaries of the reservation” only:

(1) Upon the prior written consent of the [state] sheriff or chief of police . . . ; (2) In response to an emergency involving an immediate threat to human life or property; (3) In response to a request for assistance pursuant to a mutual law enforcement assistance agreement with the [state]; (4) When the officer is transporting a prisoner; (5) When the officer is executing an arrest warrant or search warrant; or (6) When the officer is in fresh pursuit . . . .

Id. at § 10.93.070; see also generally Laurie Reynolds, Intergovernmental Cooperation, Metropolitan Equity and the New Regionalism, 78 Wash L. Rev. 93, 120 n.108 (2003).  Further, because the accreditation process is left up to the judgments of local sheriffs, rather than on the basis of the officer training, only the Swinomish Police Department has obtained Washington State accreditation under the current law.

If anything, in Eriksen the Washington State Supreme Court has signaled that the current system of tribal/state policing does not work.  Working with tribal governments to foster a mutually beneficial crime control system?  In a manner that respects tribal sovereignty?  Could the Washington State Supreme Court be signaling an endorsement of these (not so) novel ideas?  I hope so.

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 Gaming Is Not Forever

This syndicated opinion, "America's gambling addiction threatens the nation's soul," which appears in newspapers across the country today, brings into stark focus why Indian gaming is not forever. While Indian gaming, i.e. the tribal brick-and-mortar casino as we currently know it, has not outlasted its useful life, there will come a time when Indian gaming, or at least its $26 billion in annual gross revenues, will fall off, if not fade away.

That is because growing forces like Internet gaming (an if not a when), state-run gambling activities (for sake of balanced state budgets), and private casino development (or "government-countenanced" gaming via taxation) will eventually erode the tribal gaming market share. Indeed:

Currently, the Washington, D.C., government hopes to install an Internet gambling hub by the end of this year. California and Massachusetts have bills pending. Other states are watching with interest to see if the federal Justice Department chooses to enforce existing law that seems, at face value, to prohibit online wagering.

Today's economies and politics are fueling the push to universalized gambling. State governments struggling with monster deficits are desperate for any new form of revenue. And the nation seems seized by weirdly irrational politics that equates any tax increase with original sin.

Already, government-countenanced (or directly run) gambling is at a historical high-water mark. All but seven states have lotteries. Casino gambling, both state-countenanced and run by Indian tribes, is spreading like wildfire, especially in the Northeast. Each year, at least half of America's states consider new gambling outlets. "There is a legalized gambling avalanche in progress in America," Skolnik concludes.

In addition, the "social costs of gambling" highlighted in this column, including so-called problem gambling, will eventually cause policy changes in the national gaming space that will negatively impact the Indian gaming market.

Now is the time for tribal governments to diversify their economies; to diversify away from any tribe's sole reliance on its casino to fund essential governmental services and programs. Don't wait.

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.

The Time Is Now For Tribal Clean Energy

Indian country should be taking the Fed’s renewable energy policies to the bank. In January of 2011, U.S. Energy Secretary Steven Chu announced unyielding support for tribes in their efforts to use alternative energies to “improv[e] the environment and support[] longterm clean energy jobs.” Part of Secretary Chu’s plan included making millions of dollars available for renewable energy projects on tribal lands. Other federal economic has incentives abound, including: renewable energy tax credits, federal grants, clean energy renewable bonds, production tax credits, residential energy efficiency tax credits, green schools programs, and energy efficient appliance rebate programs – just to name a few.

These incentives are not limited to the Fed either. States are passing renewable energy portfolio standards – laws that require utility companies to purchase a mandated amount of their energy from renewable sources – with fervor. States do not have the capacity to meet these targets on their own.

The general economic climate also remains favorable. In FY2010, clean energy investments grew by 30 percent, to $243 billion. An estimated $1 trillion in revenue is possible were Indian country to fully develop its energy resources.

Yet, as of February 2011, only one commercial scale renewable energy project is operating in Indian country. What gives?

As often is the case in Indian country, unfavorable and burdensome federal regulations that do not take account of the Indian perspective are the culprit. Put simply, the only policies that work are those developed by Indians, for Indians, with the least amount of federal intervention as possible. Earlier this week, the New York Times offered a similar conclusion:

The Rosebud Sioux are proud of the Owl Feather War Bonnet Wind Farm, a 30-megawatt project that sits on the rolling hills that the tribe has called home for centuries.

The South Dakota farm represents the tribe's opportunity to escape a high unemployment rate by tapping into the country's renewable energy needs. But a slew of obstacles has stalled the shovel-ready project, beginning with the 18 months it took the Bureau of Indian Affairs to approve the leasing agreement back in 2008. . . .

Today, the Obama administration is hoping to eliminate such bureaucratic impediments through better consultations with tribes on domestic policies. . . .

The results of such discussions – particularly when it comes to energy policy – are unclear. The Owl Feather War Bonnet farm still sits unused, despite the presence of an Air Force base nearby that the tribe had hoped would buy its energy.

The federal goals of a “clean energy economy” cannot be met without cooperation from Indian country. However, without meaningful consultation, minimized federal red-tape, and a genuine government-to-government relationship, the Feds’ renewable energy policies will never come to fruition. Having identified what hinders alternative energy development, it is now time for Congress to write necessary legislation to allow tribes to pursue true energy self-determination.

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.

Pechanga Has Legal Rights to Protect and Preserve Sacred Mountain Peak

Sacred places are the foundation of all other beliefs and practices because they represent the presence of the sacred in our lives. They properly inform us that we are not larger than nature and that we have responsibilities to the rest of the natural world that transcend our own personal desires ... There probably is not sufficient time for the non-Indian population to understand the meaning of sacred lands . . . We can but hope that . . . protection be afforded these sacred places before the world becomes wholly secular and is destroyed. - Vine Deloria Jr., God is Red

According to the Los Angeles Times and related headlines, a construction company challenges the Pechanga Band of Luiseno Indian's testimony that the proposed site for a massive rock quarry would destroy Pechanga cultural properties, specifically a mountain peak where the Tribe's creation story arose.

Federal law recognizes the Tribe's right to protect and preserve that sacred mountain peak, even though it sits on private lands off of the Pechanga Reservation. Tribes can arguably regulate ''off-reservation activities that have significant effects within the reservation,'' which would include the disturbance or destruction of sacred sites on private lands (Wisconsin v. EPA). Tribes also retain usufructuary rights - i.e., rights to enjoy properties that belong to somebody else - in their off-reservation cultural properties (Minnesota v. Mille Lac Band of Chippewa Indians). Among those rights, tribes have reserved access rights to their cultural properties on non-tribal lands, particularly within historic fishing, hunting and gathering grounds (U.S. v. Washington).

Hopefully these tribal rights, recognized at federal common law, will be also be honored by the Riverside County Planning Commission before the world, or at least Riverside County and the Inland Empire, becomes wholly secular and is destroyed.

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.