TOGA, TOGA! SCIA Kicks Off The Tribal Online Gaming Party

Earlier this summer it looked like a federal online gaming solution was unlikely in the face of recent piecemeal moves by states to legalize Internet play. But today’s Senate Committee on Indian Affairs Oversight hearing on Regulation of Tribal Gaming: From Brick & Mortar to the Internet suggests that reports of the demise of the federal regulatory solution were grossly exaggerated. In fact, the Committee has published a discussion draft of the “Tribal Online Gaming Act of 2012” or “TOGA.”

Expect this draft to be discussed in depth today at 2:15 p.m. eastern by a panel of experts and insiders. Testimony will be available via webcast.

If TOGA has legs, expect it to be debated heavily. Some of TOGA’s critical points:

• Any federalization of online gaming must provide positive economic benefits for Indian tribes since such a program would create thousands of jobs within the United States. • “Tribal online gaming” means only online poker. • The Secretary of Commerce shall oversee and regulate tribal online gaming – not the NIGC. • Tribes, consortiums of tribes, and “a consortium of tribe(s) and non-tribal entities” could be operators. • No Indian lands requirement appears to exist. • TOGA is not intended to affect compacts or cause them to be renegotiated. • A most-favored-games clause would allow tribes to offer games as they become legal – ostensibly beyond poker. • No state taxation of tribal online gaming revenue.

So, the TOGA party has started. Will it get busted (by the Congress)? If not, which tribal governmental operators will be let into the TOGA party? And which will be left out? The tribal online gaming fun has now officially begun.

Anthony Broadman is a partner at Galanda Broadman PLLC and focuses his practice on issues critical to Indian Country. He can be reached at 206.321.2672 and anthony@galandabroadman.com.

DOJ Supports Indian Prisoners' Religious Rights

In an landmark statement of federal support for Indian prisoners' rights to freely practice tribal religion, the Department of Justice filed a Statement of Interest with a South Dakota federal district court, supporting the Native prisoners' use of traditional tobacco during worship. Gabe Galanda recently published a paper, "Protecting Indian Prisoners' Religious Freedoms," which cited various federal legal authorities on the topic:

To be clear, Native inmates “do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish (1979). Rather, they enjoy free exercise rights protected by the federal First Amendment. Pell v. Procunier (1974). Despite a U.S. Supreme Court decision in 1987 that supplanted the longstanding strict scrutiny basis for review with a “legitimate penological interest”-test, Turner v. Safley (1987), restrictions on Native prisoner religious practices such as sweat lodge ceremonies have been held to unlawfully infringe upon such a prisoner’s right to “free exercise” of religion. See e.g. Thomas v. Gunter (8th Cir. 1994). Further, some state constitutions, like Washington State’s, afford more protection for religious freedoms than the federal First Amendment. First Covenant Church v. City of Seattle (1992).

In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), to restore the strict scrutiny test for prisoner religious freedom claims. Under RLUIPA, a prison cannot substantially burden an inmate’s religious exercise unless the imposition of the burden on that person “is in furtherance of a compelling governmental interest” and is the “least restrictive means” of furthering that interest. Ahmad v. Furlong (10th Cir. 2006). Accordingly, federal courts have affirmed the rights of Native prisoners to use tobacco for religious ceremonies, Native American Council of Tribes v. Weber (D.S.D. 2011), and to participate in talking circles and pipe and drum ceremonies, Meyer v. Teslik (W.D. Wis. 2006).

As an overlay, the American Indian Religious Freedom Act (AIRFA) of 1978 announced the United States policy to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions.” Although AIRFA does not create a cause of action,” Lyng v. Northwest Indian Cemetery Protection Assoc. (1988), the law has been cited as persuasive authority in a number of cases concerning the religious rights of America’s first peoples—including those who live behind bars.

Kudos to the DOJ and the South Dakota U.S. Attorney's Office for standing in support of Indian prisoners' religious rights and traditional tobacco use -- and the free exercise of Indian religion at large.

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 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda to Address UN-Geneva Re: American Indian Treaties and Consultation

Gabe Galanda will visit Geneva, Switzerland on July 16 and 17, 2012, to address the United Nations Office of the High Commissioner for Human Rights, during a forum titled, “Strengthening Partnership Between Indigenous Peoples and States: Treaties, Agreements and Other Constructive Arrangements." Gabe, an enrolled member of the Round Valley Indian Tribes of California, will speak at the UN Palais des Nations on July 17 during a session titled, “Highlights of country-level experiences concerning treaties, agreements and other constructive arrangements.”

He will speak along with indigenous leaders from South Africa, Costa Rica, Bangladesh, New Caledonia, Canada, Mexico, Columbia and Kenya, regarding the processes, principles and other essential elements of the negotiation and elaboration of new agreements or other constructive arrangements as well as the effective recognition of historical treaties.

“The invitation to join the leaders of indigenous nations and nation-states and address the U.N. human rights tribunal in Geneva is one of the highest honors I have ever received,” said Galanda. “I look forward to contributing to international discourse concerning the rights of indigenous peoples vis-à-vis their sister sovereigns, and to helping advance the American Indian consultation right towards one of informed consent.”

Gabe’s remarks and paper are titled, “American Indian Treaties: The Consultation Mandate." In particular, he will address domestic federal recognition and breach of Indian treaties, and modern practices of federal-tribal government-to-government consultation, particularly in relation to the U.N. Declaration of the Rights of Indigenous Peoples (DRIP) that President Obama endorsed on December 16, 2010. Indian treaties are to be recognized as the Supreme Law of the Land according to Article VI of the U.S. Constitution.

Gabe has been critical of the United States government for its breach of the U.N. DRIP (“in action, the departments, agencies, and officials within the Obama Administration do not actually live up to the words contained in the Declaration. To the contrary, federal actions too frequently contradict the promises made by the United States to American Indian indigenous people in the Declaration”); and its violation of fundamental consultation tenets between sovereigns (“other federal agencies completely missed the memo on tribal consultation – literally President Obama’s Tribal Consultation Memorandum – and, in specific instances, have failed to meaningfully consult with tribal governments concerning federal activity”). He maintains that a “treaty consultation obligation arises, in part at least, from the implicit duty to consult that is intrinsic in any bilateral agreement between nations.”

Gabe is a Partner with Galanda Broadman, PLLC, an American Indian-owned law firm in Seattle dedicated to advancing tribal legal rights and Indian business interests. His practice focuses on complex, multi-party litigation and crisis management, representing tribal governments and businesses and Indian citizens. Gabe has prosecuted various actions against the United States and for breach of Indian treaties and federal Indian consultation laws.

He has been selected to The Best Lawyers in America® from 2007 to 2012, and was named as one of the best lawyers in Washington State by Puget Sound Business Journal in 2011. Gabe was named to the Puget Sound Business Journal’s “40 Under 40” list, as well as 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, in 2009. Washington Law & Politics/Super Lawyers magazine named Gabe a “Rising Star” for ten of the last twelve years, most recently this year, and Washington Law & Politics 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 born and raised in Port Angeles, Washington. At Peninsula College, he received his A.A. from Peninsula College in 1995, and served as Associate Student Body President there in 1994-95. Gabe received his B.A. in English Literature from Western Washington University in 1997, and his J.D. from the James E. Rogers College of Law at the University of Arizona in Tucson, in 2000. At Arizona, he served as President of the Native American Law Students Association in 1998-99 and Note Editor for the Journal of International and Comparative Law in 1999-2000.

Gabe Galanda Quoted By Boston Public Radio on Mashpee Situation

Gabe Galanda was quoted this morning in a Boston public radio story, Big Hurdles Remain For Mashpee Wampanoag Taunton Casino, regarding the Mashpee Wampanoag's efforts to have land taken into trust for purposes of gaming.

[Y]ou’ll remember that the Masphee became federally recognized as at tribe, officially, a few years ago. So thanks to [Carcieri], right now, the Mashpee can’t turn that land in Taunton into tribal land, which means they can’t build a casino on it.

I spoke with Gabe Galanda, he’s an expert in tribal law:

I think the situation they’re in is tragic. The state and local support of the tribe certainly does not hurt them. But the Secretary of the Interior remains without legal authority to take that land into trust.

That sounds pretty definitive.

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, including gaming. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Trending: Gross and Willful Tribal Vendor Requests for Indemnity

For years, lenders have insisted that tribes indemnify them in loan documents for the bank's own negligence and misconduct concerning the deal. Tribes have too frequently accepted the bank-demanded indemnity language, simply in order to get the cash they need to run tribal governments and businesses. More specifically, some commercial lenders, and an increasing number of vendors and service providers to tribes, are insisting that tribes indemnify them from the banks/vendor/providers' own negligence, carving out from the indemnity clauses only those non-Indian businesses' "gross negligence" and "willful misconduct." And the the banks/vendor/providers treat the issue as non-negotiable; as "take it or leave it"/"our way or the highway."

Tribes should simply not be indemnifying non-Indian businesses from basic negligence. Period. The banks/vendor/providers' simple negligence should be carved out of any indemnity language that the tribe agrees to in favor of those non-Indian businesses.

The banks/vendor/providers' position, i.e., assume liability for our silly behavior or we won't loan you cash or provide you services, is preposterous -- in fact gross (disgusting) and willfully disrespectful to tribal governments and enterprises. Hopefully tribes who see over-reaching indemnity language in proposed loan documents and other commercial agreements, will reject any such language out of hand. If enough tribes do, that language will eventually disappear from commercial agreements in 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 helps with all varieties of tribal economic development and diversification initiatives. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Tribal Immunity Held Inapplicable to Private Insurers -- Ya Think?

The Oklahoma Supreme Court recently ruled in Waltrip v. Osage Million Dollar Elm Casino that a tribal enterprise's private workers' compensation insurer did not enjoy tribal sovereign immunity and was estopped to deny coverage under a policy for which the carrier accepted premiums computed in part on a tribal employee's earnings. The tribe's insurance company had the audacity to assert sovereign immunity on its own behalf? Really? Although, I'm not sure why I'm surprised that an insurance company (or the low-rate, high-volume, non-tribal defense lawyer the carrier likely unilaterally hired to defend its tribal insured) would stoop so low.

Waltrip states what was otherwise conventional Indian legal thinking, that a private insurer cannot shield themselves from defending or paying on tort claims brought against its tribal insureds as a matter of the insured's sovereign immunity. Previous to Waltrip, the Arizona Supreme Court came the closest to making that point clear, in Smith Plumbing Co., Inc., v. Aetna Casualty & Surety Co.: “Because the Tribe has the power either to insist upon or waive its sovereign immunity, that immunity is considered a personal defense not available to the Tribe’s surety.”

Thankfully the common law now clearly establishes that an insurer cannot duck and run from from a personal injury claim by asserting the sovereign rights of the insured, for the carrier's own economic gain.

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 helps tribal governments and businesses devise insurance solutions, and defends tribal insureds from serious and catastrophic tort claims. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Galanda and Dreveskracht Both Published in Gaming Law Review on Cutting Edge Indian Gaming Issues

Gabe Galanda and Ryan Dreveskracht were each published in the June 2012 edition of Gaming Law Review and Economics, the leading peer-reviewed journal addressing important regulatory and economic issues facing today’s gaming industry. Gabe was featured in a published set of roundtable comments on issues of "Native American Off-Reservation Gaming." Among Gabe's quotes:

“[O]ff-reservation gaming” is simply a politically loaded term, by the design of non-tribal political interests...[W]hat we are more likely than not talking about it is reacquired Indian lands -- lands to be held in trust for tribal governments by their trustee, the United States, for purposes of Indian governmental gaming enterprise."

"Everyone is awaiting the Interior Secretary’s determination on the Spokane Tribe's application for a two-part determination...[for a] proposed a gaming site just a few miles down the road from the Kalispel Casino and Resort, also in Airway Heights. As the crow flies, it’s about thirty miles from the Spokane Reservation. So the very recent acquisitions in California...perhaps bode well for the Spokane Tribe..."

"[A] Carcieri fix, as it has been called, is needed by Congress, both for purposes of trust acquisition relative to gaming and, more importantly, so that tribes can restore their land base and conduct themselves as governments, while diversifying their economies away from gaming....Any Carcieri fix and the issue of so-called off-reservation trust acquisition for gaming purposes are apples and oranges. But Congress has been persuaded to think that those two issues are inextricably intertwined with one another. And it is safe to say, I believe, that, so long as Congress believes that a Carcieri fix will allow so-called "off-reservation gaming," it is very likely that there will never be a Carcieri fix."

"[W]e are seeing a rise of cases like Patchak, where non-Indian citizens or officials are suing the United States or appealing administrative decisions and the tribe is not a party to the administrative litigation or to the federal court lawsuit -- until, perhaps, it is forced to intervene. And, generally speaking, tribes are immune from such administrative or federal court litigation between a non-Indian party and the federal government. But then they are faced with the Hobson's choice of essentially standing behind the shield of that immunity and not involving themselves in the litigation and, therefore, allowing the United States to represent its interests; or to actually consent to the litigation and effectively waive their immunity, because the tribe believes that it is the only party that can adequately represent its interests and because it believes -- perhaps more crucially –- that the federal government cannot adequately represent its interests."

"The tribes, whether by Congress or the Obama Administration, must be given a seat at the internet gaming table and they must be specifically mentioned in any federal law or regulation which allows internet gaming. If the United States flouts its obligations to Indian Country in regards to the legalization of internet gaming, then it may be time for tribal governments to start internet gaming irrespective of the fed. And that, of course, is precisely how modern Indian gaming began in the 1970s; that is what resulted in the Cabazon decision and, ultimately, the Indian Gaming Regulatory Act and, ultimately, it is that civil disobedience, if you will, that resulted in us having this discussion about a $26 billion Indian gaming industry."

Ryan published his article, "Keeping It Clean for the Future of Indian Gaming." A passage:

At minimum, the cautionary tale to lawyers exemplified by Lake of Torches must be told: Saybrook and Wells Fargo filed a $50 million suit against their former attorneys, alleging that Saybrook would not have purchased the bonds and Wells Fargo would not have secured them had it not been for their attorneys’ negligent advice regarding NIGC approval. It is highly unlikely that the attorneys’ malpractice insurance will cover any $50 million judgment. Further, although Lake of Torches was a legal victory for the Lac du Flambeau Tribe, it was Pyrrhic for both the Tribe and Indian Country. While Lac du Flambeau will find it difficult, if not impossible to ever assume another commercial loan, the Lake of Torches imbroglio helped freeze the capital markets for all of Indian Country for much of the last couple of years.

Indian gaming enterprises have an obligation to appreciate and help nullify the danger that non-Indian businesses and their attorneys inadvertently pose to tribal sovereignty. Indeed, the days of tribal lawyers playing ‘‘hide the ball’’ in contract negotiations may need to be a thing of the past. Instead, taking preemptive steps to caution non-Indian businesses to at least hire competent counsel is not only good business, it is very likely necessary to deter the ero- sion of those fundamental principles of law that have allowed Indian gaming to flourish into the present day.

Gabriel "Gabe" Galanda is a partner, and Ryan Dreveskracht an associate, at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  Gabe is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He represents tribal governments and businesses and Indians citizens in all matters of controversy and transaction. He can be reached at 206.691.3631 or gabe@galandabroadman.com. Ryan's 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.

Pacific Northwest Indian Law Attorney Gabe Galanda Named "Rising Star"

Gabe Galanda was named a Rising Star by Super Lawyers magazine for the year 2012. It is the tenth time in his 12-year career he has been bestowed with the honor. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

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 represents tribal governments and businesses and Indians citizens in all matters of controversy and transaction. He can be reached at 206.691.3631 or gabe@galandabroadman.com.

Anthony Broadman Publishes "Administrative Law in Washington State Indian Country" Chapter

Anthony Broadman, the current Chair of the Washington State Bar Association Administrative Law Section, recently published a chapter in the Section's Washington Administrative Practice Manual -- the authoritative text on administrative law in Washington State and now, in Indian Country. As the new edition of the manual states:

Chapter 18, Administrative Law in Washington State Indian Country. This release contains a completely new chapter which discusses the administrative laws and procedures that come into play when confronted with any issue involving a Native American person or tribal government. The topics covered include: - tribal administrative bodies; - recourse to tribal courts; - exhaustion of tribal administrative remedies; - the Indian Civil Rights Act; - practice before the Interior Board of Indian Appeals; - the Washington State Gambling Commission; - liquor sales regulation; and - the Public Records Act.

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, especially in federal, state and local tax controversy. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or via galandabroadman.com.

WSBA ALS Chair Anthony Broadman To Present Frank Homan Award

Anthony Broadman, Chair of the WSBA Administrative Law Section, will present the 2011 Frank Homan Award to Gonzaga Law Professor Larry Weiser on June 4, 2012, at the Gonzaga School of Law.  The award presentation follows the CLE entitled The Spirit of the Homan Award: Administrative Law Today, starting at 3 p.m. in the Moot Court Room.  A reception will follow the award presentation.  The Frank Homan Award is given annually to an individual who has demonstrated contribution to the improvement or application of administrative law. 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, especially in federal, state and local tax controversy. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or via galandabroadman.com.