Huy Urges Tribal & Coalition Opposition to California’s Proposed Violation of American Indian Prisoners’ Religious Freedoms

In February, the California Department of Corrections and Rehabilitation (“CDCR”) provisionally outlawed, on a so-called “emergency” basis, American indigenous prisoners’ religious use of: tribal sacred medicines like kinnikinnick, copal, and osha root; indigenous sacred items like pipes and pipe bags, drums and other instruments, and water dippers; and tribal religious necessities like cloth for prayer ties, beads and beading supplies, and animal hides and teeth.  It appears the indigenous prisoners’ sweatlodge ceremonies have also been curtailed being reduced from occurring every weekend to only one or two times per month.

Any person, group or tribe may submit written comments about what remains a proposed CDCR religious property regulation to CDCR, Regulation and Policy Management Branch (RPMB), P.O. Box 942883, Sacramento, CA 94283-0001, or by fax to (916) 324-6075, or by e-mail to RPMB@cdcr.ca.gov. All written comments must be received by the close of the public comment period May 7, 2013, at 5:00 p.m.  Also, a public hearing will be held on May 7, 2013 from 10:00 a.m. to 11:00 a.m. in Sacramento, specifically in the Kern room, located at 151 S Street, North Building, 95811. The CDCR will then consider comments, evaluate proposed alternatives, and issue a final rule.

We urge your timely written and public comment in opposition to the State of California’s unlawful effort to unduly restrict American indigenous prisoners’ freedom to believe, express and exercise traditional indigenous religion.

Proposed Regulation § 3190(b) & Revisions to Authorized Personal Property Schedule

On February 21, 2013, CDCR filed a proposal to amend sections of the California Code of Regulations, Title 15, Division 3 concerning inmate religious property. Because this amendment was undertaken as an emergency regulatory action, the new regulations took effect immediately, pending final adoption in accordance with the Administrative Procedures Act (“APA”). See Notice of Approval of Emergency Regulatory Action, OAL File No. 2013-0206-01 EON. The proposed regulations significantly limit the types of religious property that prisoners are allowed to possess. Additionally, the new regulations, seeking to standardize permissible religious property, took decision-making power away from local religious review committees, making it more difficult for Native prisoners to get religious items approved for possession.

Previous regulations allowed prisoners to possess “religious artifacts.” Religious artifacts were defined as “any bag, cross, medallion, totem, bible, pipe, or any other item in which the possessor places religious or spiritual significance.” 15 CA ADC § 3000 (emphasis added). An Authorized Personal Property Schedule (“APPS”) listed items prisoners were allowed to possess. § 3190(b). In terms of religious property, the APPS stated that inmates were allowed to possess “Religious Items (As approved by the local religious review committees…).” California Department of Corrections and Rehabilitation Operations Manual (2013), Article 43, Inmate Property (Revised 2-1-08) [hereinafter Operations Manual].

The Operations Manual defined religious items broadly, stating that “[r]eligious artifacts are those items which American Indians wear on religious/ceremonial occasions and include their tribal designations, personal and religious totems and items which have spiritual significance in their lives.” Operations Manual § 101060.10. The Operations Manual stated that religious items included but were not limited to chokers, eagle feathers, headbands, wristbands, and medicine bags. Id. Additionally, the Operations Manual allowed personal religious items for sweat lodge ceremonies, including but not limited to sacred pipes, pipe bags, kinnikinnick, eagle feathers, sage, sweet grass, buffalo or deer skulls, antlers, lava or river rocks, water, non-metallic dippers, and non-metallic buckets. Operations Manual § 101060.9.1. Further, the Operations Manual mandated that “[c]ustody staff shall consult institutional chaplains and spiritual leaders whenever possible when considering the disapproval of religious items.” Operations Manual § 54040.10.9.

A Soledad Prison order from May 9, 2011 provides an example of the variety of items inmates were allowed to possess. The order allowed for items including but not limited to sacred herbs, including sage, sweet grass, cedar, kinninnick, copal, bitter root and osha root; prayer fans; beaded items such as wristbands, headbands, bandannas; cloth to be used for prayer ties, beads and beading supplies including needles, looms, and thread; pipes and pipe bags; hand drums, flutes, rattles, and clap stick; gourd water dippers; soft leather from a variety of animals; and coyote and bear teeth. See Department of Corrections and Rehabilitation, CDC-128 B (8-87), Velarde (May 9, 2011).

In contrast, the new regulations remove religious items from the APPS, instead promulgating a separate Religious Property Matrix. Text of Proposed Regulations, § 3190(b); Proposed Revisions to APPS. The new regulations retain the broad definition of religious items in § 3000, including “item[s] in which the possessor places religious or spiritual significance.” However, the Matrix itself states that “[i]nmates are only permitted personal religious items listed in this Matrix.” Religious Property Matrix (12/1/12). The Matrix then lists 24 items that are allowed.

The Matrix’s list of approved items is extremely limited, failing to include items that have previously been allowed. For instance, herbs are restricted to mint, cedar, lavender, sweet grass, and sage. Thus, important herbs such as kinninnick, copal, and osha root are now prohibited. The Matrix also does not include cloth for prayer ties, beads or beading supplies, pipes or pipe bags, drums or other instruments, water dippers, leather, teeth, or other items. The new Matrix should not affect the use of tobacco in ceremonies. Prisoners were not previously allowed to possess tobacco personally, though they were allowed to use it for religious purposes. 15 CA ADC §§ 3180(b)(2), 3188(c)(1); see also Department of Corrections and Rehabilitation, CDC-128 B (8-87), Velarde (May 9, 2011). Thankfully, the regulations regarding tobacco have not been amended.

Additionally, the Matrix is only amendable a maximum of twice a year and must be amended by the Wardens Advisory Group/Religious Review Committee in accordance with the rulemaking requirements of the APA. Text of Proposed Regulations, § 3190(b). Thus, the process for getting an item approved is a much more burdensome one for prisoners because determinations about specific permissible religious items is no longer left to local religious review committees.

Moreover, it appears that American indigenous prisoners’ sweatlodge ceremonies have also been curtailed, from occurring every weekend to only one or two times per month. That restriction, in particular, presents a potentially disastrous impediment to those indigenous prisoners’ spiritual rehabilitation.

Finally, it is unclear why imposition of this overly restrictive Matrix qualified as an emergency. California law states that “[a] finding of emergency based only upon expediency, convenience, best interest, general public need, or speculation, shall not be adequate to demonstrate the existence of an emergency.” Cal. Gov’t Code Ann. § 11346.1 (West). The CDCR has since articulated that its reasons for amending the religious property regulations include “(1) providing statewide standardization concerning allowable religious items for inmates, (2) compliance with existing court mandates, (3) reducing potential inmate litigation, (4) reducing the ability for inmates to barter or trade religious property, and (5) ensuring security and safety in the institutions.” Initial Statement of Reasons. The CDCR must have provided some basis for emergency action in its initial filing. However, the imposition of these unduly restrictive regulations before an opportunity for notice and comment, which could have broadened the Matrix’s scope, has placed a significant and immediate burden on Native prisoners’ religious rights.

For additional information, contact Huy Chairman Gabriel S. Galanda, at (206) 300-7801 or gabe@galandabroadman.com.

Seattle, Washington Indian Law Attorney Gabe Galanda Re-Elected to National Native Bar Association Board

On April 17, 2013, at the National Native American Bar Association (NNABA) Annual Meeting near Santa Fe, New Mexico, Gabe Galanda was re-elected to his third consecutive term on the NNABA Board of Directors. Gabe chairs NNABA's “Include Indian Law on State Bar Exams” Initiative, and co-chairs its “Increase Natives and Tribal Court Judges in the Judiciary” Initiative.

NNABA Board of Directors 2013-2015

Officers

President Mary Smith (Cherokee)

Past President Patty Ferguson-Bohnee (Pointe-au-Chien)

President-Elect Linda Benally (Diné)

Treasurer Lawrence Baca (Pawnee)

Secretary Thomas Weathers (Qawalangin Tribe of Unalaska)

Directors

Aliza Organick (Diné)

Sara Setshwaelo (Ione Band of Miwok)

Robert Saunooke (Cherokee)

Gabe Galanda (Round Valley)

Doug Nash (Nez Perce)

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.

Galanda, Broadman and Dreveskracht's Law Review Articles Named to Prof. Matthew Fletcher's Must-Read List

Leading American indigenous rights scholar Professor Matthew Fletcher has published, "American Indian Legal Scholarship and the Courts: Heeding Frickey’s Call," in the March 2013 volume of California Law Review.

In the article, he cites law review articles by Gabe Galanda, Anthony Broadman and Ryan Dreveskracht, respectively, in "a list of articles produced in the five years or so since Frickey’s call that...have overcome the law review market’s hurdles to meet Frickey’s criteria."

In harkening the late Prof. Philip P. Frickey's call "for dramatic changes to the goals and methodologies of American Indian legal scholarship...in favor of more grounded and empirical scholarship, work that could inform the Court about the realities on the ground in Indian country," Prof. Fletcher concludes his paper with "a celebration of the impact Frickey’s call already has had on the academy":

[S]everal American Indian legal scholars are doing their damnedest to meet Frickey’s call. Federal and state judges are not the only audience. Legal scholarship is for practicing attorneys; tribal, state, and federal leaders; and many others, too. And so I conclude this short paper with my own reading list of recent work that unquestionably fulfills the call for new realism in American Indian legal scholarship. I include articles dating back five years or so that meet one or more of the criteria articulated by Frickey. I also add a list of excellent “nuts and bolts” articles.

Prof. Fletcher's "must-read" list includes:

Gabriel S. Galanda, Arbitration in Indian Country: Taking the Long View, 65 DISP.RESOL.J., Nov. 2010-Jan. 2011, at 30.

Anthony Broadman, Know Your Enemy: Local Taxation and Tax Agreements in Indian Country, AM. INDIAN L.J., Trial Issue 2012, at 1.

Ryan David Dreveskracht, Native Nation Economic Development Via the Implementation of Solar Projects: How to Make It Work, 68 WASH.&LEE L.REV. 27 (2011).

Gabe, Anthony and Ryan are truly honored by Prof. Fletcher's citation to and inclusion of their law review scholarship in his most important paper regarding the state and future of American Indian legal scholarship.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  Trained by the American Arbitration Association, Gabe arbitrates disputes between tribal and non-tribal governments and other parties, as well as mediates such disputes.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Anthony Broadman is also a partner at the firm, practicing in Bend, Oregon. His practice focuses on company-critical business litigation and representing tribal governments, especially in federal, state and local tax controversy. Ryan Dreveskracht is an associate at the firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development.

Galanda Broadman Named "Gaming Law Firm of the Year in Washington"

Corporate INTL magazine has chosen the Pacific Northwest tribal law firm Galanda Broadman, PLLC, as the Boutique winner of the 2013 Corporate Intl Magazine Legal Award for "Gaming Law Firm of the Year in Washington." The award follows several recent honors for Galanda Broadman and its lawyers. In November 2012, Galanda Broadman received a prestigious Tier 1 ranking in the 2013 Edition of U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law. In addition, firm partner Gabe Galanda was then named to The Best Lawyers in America in the practice areas of both Gaming Law and Native American Law, for the seventh straight year. He was named a “Difference Maker” by the American Bar Association in November as well.

In December 2012, Lawyers of Color listed the firm in its Big Book of the Best Boutiques, an exclusive, national listing of the top minority law firms in each state. Then, in January 2013, Seattle Business Magazine honored Gabe as one of “the Puget Sound Region’s Best Lawyers for 2013,” in both the arenas of Native American Law and Gaming Law.

Galanda Broadman, “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests.  The firm, with offices in Seattle, Washington and Bend, Oregon, represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in matters of Indian Treaty rights, tribal sovereignty and taxation.

Gabe is an enrolled member of the Round Valley Indian Tribes of California. He currently sits on the National Native American Bar Association (NNABA) Board of Directors, chairing the group’s “Include Indian Law on State Bar Exams” Initiative, and co-chairing its “Increase Natives and Tribal Court Judges in the Judiciary” Initiative. Gabe is a past President of the Northwest Indian Bar Association and past Chair of the Washington State Bar Association (WSBA) Indian Law Section.

Firm partner Anthony Broadman is the immediate past Chair of the WSBA Administrative Law Section, and author of “Administrative Law in Washington Indian Country.”  In September 2012, Anthony was specially honored for his outstanding service as Chair of the Administrative Law Section.  He is a former Trustee of the WSBA Indian Law Section, and also serves as Editor-in-Chief of the Section’s Indian Law Newsletter. Anthony has been named a Rising Star by Washington Law & Politics-Super Lawyers magazine.

Ryan Dreveskracht is a firm associate. Prior to joining Galanda Broadman he was a law clerk to the Honorable Kathleen Kay, in the U.S. District Court for the Western District of Louisiana. Ryan has published ten journal and law review articles in 2011-12 alone, on issues like tribal renewable energy, and has served as the Managing Editor for the National Lawyer’s Guild Review since 2010.

Brighter Days for Tribal Green Energy

Despite dark and dreary partisan gridlock in Washington, DC, rays of light are emanating from within the Beltway and upon renewable energy projects in Indian Country.

First, the Fiscal Cliff bill extended both the production and investment tax credits for renewable energy projects.  Previously, these tax credits were only available for wind projects that were completed by 2012 and biomass, landfill gas, and waste-to-energy projects completed by the end of 2013.

Thanks to the Fiscal Cliff bill, these credits have both been extended until the end of 2014.  These incentives provide a credit against federal income tax liability for electricity produced by renewable energy projects.  The amount of the credit is based on either (1) the number of kilowatt hours of electricity produced by the taxpayer and sold to an unrelated party in a given year (production tax credits) or (2) the expenditures made before the project is placed in service and for which the taxpayer has made an election to treat the expenditures as progress expenditures (investment tax credits).  Together, these incentives can be leveraged to fund around 30% of a project's costs.

The bill also extends both the Indian employment tax credit and the accelerated depreciation incentive.  Both of these incentives help encourage renewable energy development and energy independence in Indian country by lowering the operating and development costs of these projects.

The accelerated depreciation incentive allows Indian Country energy investors to use shorter recovery periods when calculating depreciation deductions for its production equipment.   “Qualified Indian reservation property” must be used predominately in the active conduct of a trade or business on the Reservation and must be 3-, 5-, 7-, 10-, 15-, or 20-year property or non-residential real property.  “Qualified infrastructure property” that is located off-reservation, but connected to qualified infrastructure within the reservation, is also eligible for shorter recovery periods.

Power lines, water systems and telecommunication facilities are examples of qualified infrastructure property.  Real property rented to others on an Indian reservation is also eligible for an accelerated depreciation schedule.  Because the shorter recovery periods for qualified Indian and infrastructure property are in addition to the normal expense deduction of up to $100,000 for such assets, the depreciation tax savings to non-Indian manufacturers could also be significant.  The bill reauthorizes the provision until 2014.

The Indian Employment Tax Credit provides businesses with an incentive to hire individuals who are enrolled members of an Indian tribe (or the spouse of an enrolled member) and who live on or near an Indian reservation.  A $4,000 tax credit is available to such businesses each tax year, for each “qualified employee” that is paid “qualified wages.”

A qualified employee must: (1) be an enrolled member of an Indian tribe or the spouse of a tribal member; (2) perform substantially all of his or her services for the business on the reservation; and, (3) reside on or near the reservation.  Qualified wages are any wages the business pays or incurs for services performed by a qualified employee, including health insurance costs.  The bill retroactively extended the program to December 31, 2013.

In addition to the Fiscal Cliff bill, the IRS has recently issued a ruling that is highly favorable to Indian energy development partners looking to take advantage of tax credits.  In IRS Ruling No. 201310001 the IRS determined that  “an Indian tribal government is  neither a governmental unit described in § 50(b)(4) nor an organization exempt from tax imposed by Chapter 1 for purposes of § 50” of the Internal Revenue Code.

Although counterintuitive, this is a good thing.  Because IRC § 50(b)(3) provides that no investment credit “shall be determined . . . with respect to any property used by an organization . . . which is exempt from the tax imposed,” entities wishing to invest in tribal energy projects were potentially ineligible for pass-through investment credits.  This ruling, however, means that tribes may now “elect to pass investment credits associated with the Renewable Energy Assets” to non-Indian lessees.  As discussed above, the ability to pass these investment credits onto non-Indian partners can be leveraged to fund a large piece of a project’s startup costs.

In all, the days ahead for tribal green energy development projects just got a bit brighter.

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.  His recent publication in the Energy Law Journal, "Alternative Energy in American Indian Country: Catering to Both Sides of the Coin," is available here.   He can be reached at 206.909.3842 or ryan @galandabroadman.com.

Seattle Tribal Lawyer to Teach Minority Lawyers How To Build a Book of Business

On April 24, Gabe Galanda will help teach the King County Bar Association's annual "Building a Book of Business: For Attorneys of Color" program in Seattle.

KCBA's Diversity Committee is proud to host this annual seminar designed to give recently admitted attorneys of color the skills they need to advance in their careers.unique program is a closed door session where you will learn to effectively market yourself and acquire new clients for your firm. You'll gain valuable networking contacts and receive guidance from some of the most well-respected and successful leaders in our region's minority bar community.

Gabe founded the Tribal Practice Group at Williams Kastner, where he was a "first ballot" equity partner and member of the firm's Board of Directors, before he started his own law firm in 2010.

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 Stumps On "Modern Federal Indian Tax Implications for Tribal Economic Development"

On March 13, Gabe Galanda spoke at the RES 2013 conference in Las Vegas, regarding tribal tax issues.  Here is his presentation Modern Federal Indian Tax Implications for Tribal Economic Development.  He addresses the following recent Indian tax developments:

Fiscal Cliff: Indian Country Tax Incentives Restored

Federal Leasing Regulations: Indian Country Tax Relief

PACT Act: Awful Precedent for State Taxation of N2N Commerce

Trending: State Taxation of Indian Country’s “Fringes”

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 sovereignty and self-governance, especially in legal opposition to federal, state and local government encroachment.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda Quoted Regarding Federal Protection for Indian Prisoners' Religious Freedoms

Gabe Galanda was recently quoted in the Indian Country Today article, "Inmate's Religious Rights Allegedly Violated Within Texas Prison System."

Gabriel Galanda, a Seattle, Washington-based attorney and member of the Round Valley Indian Tribes, is the chair of the non-profit HUY, a Salish word for “We Never Say Goodbye.” The organization supports religious and rehabilitative opportunities of prisoners in the United States. Galanda said prisoners’ constitutional rights do not end upon incarceration.

“Contrary to common misunderstanding, prison inmates do not forfeit constitutional protection just because they have been convicted of a crime and are now confined to prison,” Galanda said. “They still enjoy the rights to free exercise of religion—including tribal religion—as protected by the First Amendment of the United States Constitution.”

Galanda said these include tobacco use, pipe and drum ceremonies. Galanda also said state prisons cannot interfere with practice of tribal religion unless the state prison “can demonstrate the compelling governmental interest and use the least restrictive means of furthering that interest.”

A comment such as that allegedly made by a guard in the Texas prison system would place the state of Texas in serious risk of civil rights violations, Galanda added. He said federal law does not allow for a state employee “to disparage anybody based on race or religion. The suggestion by this state officer ‘being an Indian doesn’t make you special’ could expose the state and the officer to federal civil rights violations” . . .

Put more precisely, Native prisoners enjoy free exercise rights protected by the First Amendment. Pell v. Procunier, 417 U.S. 817, 822 (1974). Despite a 1987 decision by the Rehnquist Court that supplanted the longstanding strict scrutiny basis for review with a “legitimate penological interest”-test, Turner v. Safley, 482 U.S. 78 (1987), restrictions on Native prisoner religious practices such as sweatlodge ceremonies have been held to unlawfully infringe upon such a prisoner’s right to “free exercise” of religion. See e.g. Thomas v. Gunter, 32 F.3d 1258 (8th Cir. 1994).

The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., was passed in 2000 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, 435 F.3d 1196, 1197 (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, 2011 WL 4382271 (D.S.D. Sept. 20, 2011), and to participate in talking circles and pipe and drum ceremonies, Meyer v. Teslik, 411 F.Supp.2d 983 (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.” 42 U.S.C. § 1996. Although AIRFA does not create a cause of action,” Lyng v. Northwest Indian Cemetery Protection Assoc., 485 U.S. 439, 455 (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.

Prisoners who are Native American -- or of any other race, color religion or creed -- should not stand for any violation of their free exercise rights, especially by state prisons or corrections officers.

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 members whose civil rights have been violated.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Washington Tribal Lawyer Gabe Galanda to Discuss Indian Tax Issues (Twice) at RES 2013

Gabe Galanda has been invited by the National Center for American Indian Enterprise Development (NCAIED) to speak on two Indian taxation panels at RES 2013 in Las Vegas, Nevada, the premier tribal economic development and diversification conference in the country.  He will speak on March 13.

Track 4: TAXATION, Part 1 – IRS Tax Implications on Tribes, Tribal Enterprises and Tribal members. Tribes and intertribal organizations have formed the Intertribal Organization Tax Initiative (IOTI) to carry out united tribal action to confront new forms of intrusion into the sovereign affairs of tribes by federal and state taxation policies. Tribal governments have had to defend against expansive Internal Revenue Service (IRS) examinations and audits of tribal government services to members. Tribal governmental and economic development programs have been hindered by the more burdensome federal tax requirements imposed on tribes than on state governments. Meanwhile, states continue to seek mechanisms to obtain state revenues from tribal commerce. This break-out session, featuring representatives of the IOTI Tax Initiative, will report on key tax policy developments and what to expect in the coming year, including pending IRS guidelines on the General Welfare exclusion and tribal proposals for tax reform legislation as well as other tax policy efforts that have been undertaken to defend tribal sovereignty, strengthen nation-building and stimulate economic development.

Moderator: Susan Masten – Vice-Chairwoman, Yurok Tribe and Vice-Chairwoman Board of Directors, National Center for American Indian Enterprise Development Kitcki Carroll – Executive Director, United South & Eastern Tribes, Inc. F. Michael Willis, Partner, Hobbs Straus Dean & Walker, LLP. Gabriel Galanda – Partner, Galanda Broadman, PLLC Dante Desiderio – Executive Director, Native American Finance Officers Association

Track 4: TAXATION, Part 2 – Tribal Tax Revenue Opportunities for Tribes. Moderator: Larry Kinley CEO, Lummi Commercial Company and Member Board of Directors, National Center for American Indian Enterprise Development Gabriel Galanda – Partner, Galanda Broadman, PLLC Robert Porter – Senior Counsel, SNR Denton Robert Whitener – Owner, The Whitener Group, LLC

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 sovereignty and self-governance, especially in legal opposition to federal, state and local government encroachment.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Top 10 Reasons Republicans Oppose Protecting Native Women

1o. “House Republican leadership just doesn’t get it.” – Sen. Patty Murray. 9.   The incidence of violence against Native women isn’t that bad– House Committee on the Judiciary, H.R. Rep. No. 112-480, at 227 (2012). This is absolutely false. Native American women suffer violent crime at the highest rates in the United States.

8.  “Legitimate rape” – Rep. Todd Akin.

7.  “The non-Indian doesn't get a fair trial" in tribal courts – Sen. Chuck Grassley. This is also false. Numerous studies have found the guarantees and traditions of fairness in tribal statutory and common law are equivalent to – and, indeed, sometimes even go far beyond – those granted in state and federal forums. And if there is any deviation, the federal Indian Civil Rights Act, 25 U.S.C. 1301-1303, assures non-Indian domestic offenders due process of law in tribal courts.

6. “If non-tribe members are tried in tribal courts, they are not protected by the United States Constitution and they have no right of appeal to the federal courts” – Sen. John Cornyn. This too is false. A non-member domestic criminal can seek a writ of habeas corpus in the U.S. District Court.

5.  A tribal jurisdictional fix “would likely be ruled unconstitutional by the courts.” – Sen. John Barasso. Congressional recognition of inherent tribal power to prosecute non-Indian domestic abusers is constitutional, as determined by the Supreme Court in U.S. v. Lara (2004). There is always the chance that the court will overrule Lara and change the state of the law, but to say that a law is currently unconstitutional because of something that the court might do in the future is nonsensical.

4.  They now have a token female to hide behind: Rep. Cathy McMorris Rodgers. McMorris Rodgers has recently voiced opposition to S. 47, arguing that the additional protections for Native Americans, immigrants, and gays and lesbians have no place in the law. McMorris Rodgers has in the past paid lip service to the tribal provisions, stating that she would “reach out to other GOP congresswomen to urge their support for the inclusive VAWA bill.” Apparently, she has now abandoned this position.

3.  Political Misogyny. This is a front in the very real, calculated GOP war against unmarried women, who after all, constitute the Democrat base. In the presidential election, married women backed Romney, 53 percent to 46 percent, while unmarried women chose Obama 68 percent to 30 percent. Political expediency has incented GOP’s anti-woman platform because unmarried women are opposed to Republicans’ policy goals on rape, birth control, abortion, equal pay, employment discrimination, and so on.

2.  Because they are Native American women. Republicans believe they can ignore issues affecting Native women, and they may be right. Unless Indian Country and its allies stand up to the GOP's anti-woman agenda, Republicans will succeed in further marginalizing Native women. Indeed, the GOP will prevail without even losing votes from their base, which, to be sure, includes few if any Indian women.

1.  Republicans are not being honest. There is no possible reasoned stance against VAWA. It’s Pascal’s Wager in the domestic violence context: the downside of failing to act on domestic violence in Indian Country outweighs any possible harm caused by acting. There must be another reason for their opposition. One they refuse to discuss in public (see #2).

Gabriel S. Galanda, Ryan D. Dreveskracht, and Anthony S. Broadman practice law with Galanda Broadman, PLLC. They pride themselves as "an Indian Country law firm," representing tribal governments, businesses and members in all varieties of dispute and business dealing. Ryan's article, "Congress' Treatment of the Violence Against Women Act: Adding Insult to Native Women's Injury," will be featured in the next edition of the University of Miami Race and Social Justice Law Review.