Round Valley Lawyer Gabe Galanda Named Indian Country "Visionary"

Richard Walker of the Indian Country Today Media Network published an article titled, "5 Visionaries Who See a Brighter Future for Indian Country," naming Gabe Galanda as one of "five people are rocking the world with their forward thinking, innovation and commitment to social justice."

3. Gabe Galanda, Round Valley Indian Tribes: Paving the Red Road to Recovery for Inmates

The efforts of this Seattle-based lawyer are helping Native Americans in prison to walk the red road to recovery. Galanda formed the nonprofit organization Huy (pronounced “Hoyt”) essentially meaning “I’ll see you later.” (Coast Salish people do not have a word for “goodbye.”) In Washington state, Huy won changes in policies that blocked Native American inmates’ access to traditional religious practices and sacred items.

Huy is lobbying for similar changes nationwide. The organization asked the U.N. Human Rights Committee for an inquiry into restrictions upon Native inmates’ religious freedoms, and appeared as a friend of the court in support of those freedoms. Galanda argues that restricting such freedoms violates federal, state and international law. For some Native inmates, walking the red road while behind bars is the only road to rehabilitation and survival.

“Today’s powwow, everything that we do is to give back, to show our kids and our families that we’re going to work on getting back to those ways, getting back to spirituality and things that matter,” inmate Seymour Ruben told the Cheney Free Press during an August 1 powwow at Airway Heights Corrections Center.

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 206.300.7801 or gabe@galandabroadman.com.

Tribal Lawyer Ryan Dreveskracht To Address Nisqually Community Re Indian Voting Rights

On Tuesday, November 5, Ryan Dreveskracht will deliver a speech to the Nisqually Tribe regarding Indian Voting Rights. Ryan will speak from his forthcoming law review article, tentatively titled,"Reenfranchising the Native Vote After Shelby County v. Holder." In that paper, he argues that Section 5 of the federal Voting Rights Act "is both an appropriate and necessary measure to prevent ongoing voting discrimination targeting Native American citizens, and concludes that "Congress not only has the power to compel preapproval of state voting legislation that is applicable to Indian Country, but it has an obligation to do so."

Ryan's speech will occut in the Nisqually Library, starting at 5:30 PM.

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.  He can be reached at 206.909.3842 or ryan @galandabroadman.com.

Freedom’s Just Another Word: The BIA’s FOIA Debacle

The Bureau of Indian Affairs needs an attitude adjustment when it comes to freedom of information. That is because the BIA, or at least its Pacific Northwest Region, stifles the spirit of the Freedom of Information Act (FOIA), including when it comes to the agency’s trust responsibility to Indian people. Any tribal official or citizen who has sought information from the federal Indian trustee, knows that the Bureau does everything in its power to choke the flow of information to tribal government and citizens. Having had clients in search of needed information, outright disrespected by the BIA, the Bureau’s illegal practices must be brought to light – and halted by the Assistant Secretary of Indian Affairs for the Department of Interior.

During his first term in the Oval Office, President Obama issued an Executive Order, mandating that when “responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.” 74 Fed. Reg. 4693 (Jan. 21, 2009). Yet despite this order that the BIA cooperate in service to the public, consider two recent examples of how uncooperatively the Bureau’s Pacific Northwest Regional Office treated tribal parties seeking information critical to them.

Last year a tribal enterprise requested information about Bureau commercial regulatory practices regarding Tribal trust resources. That information should have been produced without a FOIA request, because the United States’ fiduciary responsibility affords tribal trust beneficiaries “government documents prepared in aid of trust administration,” and “the requirements of FOIA serve different policies and interests” than does the execution of that duty. Osage Nation v. U.S., 66 Fed.Cl. 244 (Fed. Cl. 2005).

Even so, the Bureau required a FOIA request, as it typically does. Then, after the tribal entity wrote the BIA pursuant to FOIA, the Regional Director (or his Solicitor) glibly replied, and I quote:

The law is clear that the FOIA is not meant to have federal agencies become the research arms of other entities.

What gall, especially because the law could not be more clear: FOIA is in fact designed to cause federal agencies to be research arms – of the taxpaying American public, including Indians.

More recently members of a tribal council requested from the BIA all documents regarding a Secretarial election. In order to receive 1,000 pages of information, the BIA assessed them fees of over $10,000 – an astonishing $10 a page. What Indian or Tribe has $10,000 lying around, especially for purchase of their own federal documents?

After the Councilpersons requested a fee waiver, explaining that they needed the election records to for fundamental governmental purposes, the Regional Director (or his Solicitor) deemed the request one of “commercial interest” and reasoned:

'This request concerns individuals that would derive benefits from being enrolled in a specific tribal government and disclosure provides specific information on how individual tribal members voted. As such, your commercial interest in these disclosures is your primary interest and clearly outweighs any public interest’ in disclosure.

Again, what gall, to insult tribal citizens by declaring their governmental concerns a matter of monetary interest. Imagine the BIA offering the same explanation to a U.S. Senator asking for governmental documents.

It is time for Assistant Secretary Kevin Washburn to change the attitude of the BIA’s career employees regarding disclosure of information to the tribal public. This spring, Secretary Washburn remarked that the recent Cobell settlement allows the United States and Indian Country to “hit the reset button” on the federal Indian trust relationship. The reset button must also be hit as to Interior’s role as trustee of Indian records and information.

Indeed, “[t]he common law recognizes an obligation on the part of the trustee to provide full and accurate information to the beneficiary on his management of the trust.” Martin v. Valley Nat'l Bank of Arizona, 140 F.R.D. 291, 322 (S.D.N.Y. 1991); see also Cobell v. Norton, 225 F.R.D. 41, 45 (D.D.C. 2004). The two anecdotes I share suggest that Interior has not sufficiently learned its lesson from Cobell about tribal access to trust-related information.

In all, when responding to requests under the FOIA, the BIA should start acting promptly and in a spirit of cooperation, recognizing that the agency is a servant of the American Indian public. Perhaps then freedom of federal Indian information will reign.

Gabriel S. Galanda is a Round Valley Indian Tribal member and a partner with the Seattle office of Galanda Broadman, PLLC. Gabe has sued the Department of the Interior and BIA for freedom of federal Indian information. He can be reached at gabe@galandabroadman.com.

The NIGC Can Fix Bay Mills

By now, we all knows the risk of Michigan v. Bay Mills Indian Community being decided by the U.S. Supreme Court this winter. The Indian gaming sky is literally falling. What began as a fight over whether Bay Mills could open an off-reservation casino on Indian lands-claims property, has devolved into a direct attack on (1) tribal sovereign immunity and (2) tribal sovereignty over gaming. NCAI has wisely urged the NIGC to moot this case by issuing a closure order for the off-reservation casino. But before the issue came to a head, a few years ago, a lawyer within the NIGC opined that the agency lacked jurisdiction over – incredibly – this Indian gaming operation because it is not on Indian lands. This 2010 letter has apparently given the NIGC all the cover it needs to completely punt the issue. In doing so, the NIGC is failing to achieve its core mission of protecting Indian gaming as a means of tribal economic development.

Ideally, the Bay Mills Tribal Gaming Commission will exercise Indian sovereignty as the primary regulator of the casino and issue its own closure order, mooting this issue. But if its lacks that foresight or resolve, the NIGC should close the casino. And it can. Plainly, the NIGC is authorized to temporarily close “an Indian game” when a tribe violates IGRA, its own laws, a compact, or its gaming ordinance. 25 USC § 2713. Indian game is not defined in IGRA. Whatever it means, it does not appear to be limited to games on Indian land. Historically, the NIGC has been either too paternal (CRIT) or too afraid (Bay Mills) when it needs to act in the best interests of governmental gaming. Abdicating the agency’s core responsibility as to Bay Mills is no longer an option. Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.

Being Blunt: Tribes and Washington’s New Pot Regs

Washington State Liquor Control Board’s new proposed rules on marijuana licenses mistake Indian tribes for cities and counties on one hand, and ignore tribes on the other. The silence and misapprehension will lead to problems. Comments on the new regulations are due tomorrow, October 4 with a hearing scheduled for October 9. Washington tribal governments should make their voices heard. • The pot rules should recognize Tribes’ rights to ban or regulate and tax reservation marijuana.

The new pot rules suggest that the state has a role in on-Reservation regulation of marijuana. See WAC 314-55-160. It does not. Pot sales are not liquor traffic, where tribes share regulatory authority with states. Pot is illegal under federal law and may be illegal under certain tribal laws. The notion in the new rules that the State “may” simply “notify” Tribes when someone wishes to sell marijuana on the reservation completely misses the point. Even more problematic, the State “shall” notify cities and counties. The state has no civil regulatory jurisdiction on the Reservation. The new rules should reflect this.

• The pot rules should recognize Tribal sovereignty over taxation if sales are not banned.

Now if Tribes wish to take another tack and legalize the drug (and the federal blind eye to Washington and Colorado legalization might arguably prevent them from treating reservations any differently), Washington should be barred from asserting pot taxes on such “value generated on the reservation,” whether sold to Indians or non-Indians. See WAC 458-20-192(c). Untaxed on-Reservation sales could undercut off-Reservation sales, which will carry a 25% tax. In addition, all the other regulatory constraints on pot sales included in the new rules (e.g. the one hundred mg THC limit) are clearly civil regulatory and have no place on the reservation. Decisions about how and whether to sell reservation pot are for Tribes.

• The pot rules should address intergovernmental agreements related to pot.

If Washington’s burgeoning pot economy takes off, we’re headed for the same types of intergovernmental fights the state has picked with tribes over liquor, tobacco, and fuel. The rules should not shy away from what we all know: Good agreements make good neighbors. To the extent the Washington State Liquor Control Board has the authority, it should welcome the security of intergovernmental agreements related to pot and reflect that goal in its rules.

Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.

Galanda Broadman Named Washington Gaming Law Firm Of The Year

Galanda Broadman has been named "Boutique - Gaming Law Firm of the Year in Washington" by Global Law Experts. The award follows several recent honors for Galanda Broadman and its lawyers. Galanda Broadman recently 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.

Gabe Galanda was also just named to The Best Lawyers in America in the practice areas of both Gaming Law and Native American Law, for the eighth straight year. He was named a “Difference Maker” by the American Bar Association in November as well. Also, Gabe and Anthony Broadman, as well as firm associate, Ryan Dreveskracht were each honored by Super Lawyers magazine for 2013; Gabe as a Washington "Super Lawyer" and Anthony and Ryan as "Rising Stars."

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. 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. Last year Corporate INTL magazine named Galanda Broadman as the Boutique winner of the 2013 Corporate Intl Magazine Legal Award for "Gaming Law Firm of the Year in Washington."

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.

Anthony 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.

Prior to joining Galanda Broadman, Ryan 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.

Gabe Galanda Named Arizona IPLP Alumni Association Chair

Gabe Galanda has been named the inaugural Chair of the Indigenous Peoples Law and Policy Program (IPLP)'s Alumni Association. The Association will be launched at the University of Arizona College of Law's Homecoming Celebration on November 9, 2013.

Arizona Law has long been renowned for its expertise in Indigenous Peoples law. Over the last decade, the IPLP Program has built upon that foundation, and Arizona Law is now the only school offering all three law degrees (JD, LLM, and SJD) with a concentration in Indigenous Peoples law. Together, these programs provide the world's most advanced training in the field. The program's reputation and the work of IPLP faculty, staff, alumni and students reach around the globe and make a difference in the lives of Indigenous Peoples in the United States and across the world.

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.

Nez Perce v. Megaloads: Another Treaty-Based Consultation Victory

On September 12, an Idaho federal district court stopped massive industrial equipment headed for the Alberta Tar Sands -- now commonly known as the Megaloads -- from traversing Nez Perce Treaty-protected ceded lands. The federal court's decision affirms the power of Indian Treaties and the intrinsic consultation requirements of those sacred pacts. Article III of the Treaty with the Nez Perces of 1855 reserved for Nez Perce Indians the “right of taking fish at all usual and accustomed places” and “the privilege of hunting . . . upon open and unclaimed land.” As the court explained: "Although the Nez Perce ceded the lands now encompassing the Nez Perce Clearwater National Forests to the United States, 'they did not relinquish rights to hunt, fish, and gather, or to practice traditional religious and cultural ceremonies on these ancestral homelands.'”

Critically, even though Article III of the Nez Perce Treaty does not mention the word "consultation," the federal court ruled that: The duty of the Forest Service to conduct a consultation after finding that the mega-loads might affect cultural and intrinsic values is commanded by Treaty rights" – "there is no discretion to refuse consultation." And "[w]hen the duty to consult runs to a Tribe, the federal agency generally must consult with the Tribe before taking the action at issue." Indeed, "meaningful consultation takes place “typically before undertaking a course of action” (emphasis in original).

The Nez Perce Megaloads decision is at least the second recent decision from the federal courts, affirming Treaty-based consultation requirements over ceded or off-reservation lands, even though the Treaty Articles at issue do not mention the word "consultation." In 2010, a Washington State federal court enjoined the United States from allowing a private garbage contractor from importing municipal waste from the Hawaiian Islands into the Yakama Nation's ceded lands and fishing, hunting and gathering areas. That court ruled that there were "serious questions about whether Defendants adequately consulted with the Yakama Nation as required by [Article III] of the Yakama Treaty of 1855," even though that Treaty Article, too, does not expressly require consultation.

Under international legal norms, "the treaty obligation to consult that is intrinsic in any bilateral agreement between nations." G. Galanda, "The Federal Indian Consultation Right: No Paper Tiger," Indian Country Today; see Restatement (Third) Foreign Relations Law of the United States §§ 325, 337 (1986).  When will the United States begin to truly honor this norm?  Indeed, Nez Perce v. Megaloads, like the Yakama Hawaiian garbage case and the Quechan solar power case, illustrate how even the "pro-tribal" Obama Administration will flout federal Indian consultation rights in order to cut red tape for, and otherwise fast-track, pet projects like Tar Sands.

In fact, when the political and economic stakes are high, and the choice must be made between siding with either mega-corporations, or Indians, the United States and its President will always -- ALWAYS -- side with almighty corporate interests, and ignore guaranteed Indian rights. That paradigm is nothing new to Indian Country; it has been happening for centuries. What is new is the United States talking out of both sides of its mouth about tribal consultation.

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.  He can be reached at 206.691.3631 or gabe@galandabroadman.com.

Indian Lawyer Gabe Galanda Again Named Among America's Best Lawyers

Gabriel “Gabe” Galanda has been selected by his peers for inclusion in the 2014 edition of The Best Lawyers in America® in the practice areas of Gaming Law and Native American Law, for the eighth consecutive year. Gabe, an enrolled member of the Round Valley Indian Tribes, owns Galanda Broadman, PLLC, a boutique Seattle law firm that he co-founded in 2010. He has now been selected to The Best Lawyers in America® from 2007 to 2014.

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.

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 4.9 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.

Reason.com Features Ryan Dreveskracht's Exposition Of Fed-States-Big Tobacco Unholy Alliance

Ryan Dreveskracht's exposition in Native American Times about the Master Settlement Agreement, was quoted at length in a recent reason.com blog post, "Tax-Hungry State Officials Revive Indian Wars Over Cigarettes."

As part of an interesting analysis of the cigarette tax standoff, Ryan D. Dreveskracht summarizes a major tax collecting approach for Native American Times:

In 1998, the Attorneys General of 46 states, five U.S. territories, and the District of Columbia settled various legal actions involving antitrust, product liability, and consumer protection claims against the nation’s four largest tobacco companies. (In the early years of the Bush Administration, the Department of Justice decided not to pursue claims against tobacco manufacturers for harm caused in Indian country). The states wanted billions of dollars, and were likely right to demand it. The tobacco companies, however, anticipated that they would have to substantially raise cigarette prices to pay for their financial obligations to the states. They also knew that by raising their prices, other nonparticipating companies would have a competitive price advantage.

In settling the suits, the major tobacco companies got a sweetheart deal. As part of the settlement agreement, states agreed to enact and “diligently enforce” escrow statutes that “effectively and fully neutralize[d]” competition from nonparticipating companies. These statutes impose financial obligations on non-participating companies by requiring them to make escrow payments based on the number of tax-stamped cigarettes sold in a participating state. Participating tobacco companies are not subject to these payments. Nonparticipating companies, however – companies that have never been sued or found culpable for conduct giving rise to liability – are required to make the payments.

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.  He can be reached at 206.909.3842 or ryan @galandabroadman.com.