Gabe Galanda Honored by WSBA for Excellence in Diversity

Gabe Galanda has been honored with the Excellence in Diversity Award by the Washington State Bar Association. He will be given the award at the WSBA's annual awards dinner in downtown Seattle on September 18, 2014.

Gabe is an enrolled member of the Round Valley Indian Tribes of California. He currently sits on the National Native American Bar Association Board of Directors, and is a past President of the Northwest Indian Bar Association and past Chair of the Washington State Bar Association Indian Law Section.  

He is being primarily honored for his work associated with Huy, a non-profit that provides economic, educational, rehabilitative and religious support for American Indian, Alaska Native, Native Hawaiian and other indigenous prisoners in the Pacific Northwest and throughout the United States.

In 2012, Gabe founded Huy--pronounced "Hoyt" in the Coast Salish Indian Lushootseed language, to mean "see you again/we never say goodbye."  He serves as the Chairman of Huy's Board of Advisors, and runs the non-profit through his law office.

Huy's most notable recent activities include two amicus curiae efforts before the U.S. Supreme Court, and advocacy before the United Nations and its Human Rights Committee, on behalf of American indigenous prisoners vis-a-vis their fundamental human rights to engage in traditional tribal religious worship.

Gabe is the Managing Partner of Galanda Broadman, PLLC, an American Indian-owned law firm dedicated to advancing and defending Indian rights.  The firm has offices in Seattle, Washington and Bend, Oregon.

Nike, N7 Should Get Off the Sidelines re Redskins Mascot

Nike and its N7 Fund have done some amazing things for Native America.  Yet the biggest sports brand on the planet stands on the sidelines of the "Change the Mascot" movement. It is understandable why some of America's biggest companies--Coca Cola and FedEx to name just two --are sitting out the Redskins mascot controversy. Money.  Big Money.

But unlike those other Fortune 50 companies, Nike has specifically stated a "commitment to bring sport and all of its benefits to Native American and Aboriginal communities in the United States and Canada."  

Of course with that commitment comes business opportunity for Nike, and not merely through the N7 shoes and apparel line.  The much more lucrative play comes through the intangible economic benefits that adorn any well-advertised philanthropic venture like the N7 Fund.

It is rather hypocritical for Nike to "help Native American and Aboriginal youth recognize their proud history," yet sell sports merchandise bearing a logo historically associated with bloody Native American scalps when "in-depth studies that show the harm negative stereotypes and 'Indian' sports mascots have on Native youth."

Nike has thus far largely (but not entirely) ducked the Indian mascot controversy.  That is in part because although national tribal leaders have lambasted the likes of FedEx for not denouncing the Redskins mascot, they have looked past Nike and N7.  Native America has allowed the the world's #1 athletic apparel company to ignore its own social responsibility to denounce racism in professional sports--especially in the form of branded pro sports apparel.

Indeed, without the prominence of Nike and its ever-lasting Swoosh the Redskins mascot might just fade away.

And beyond a Nike pronouncement against the racist Redskins mascot being the proverbial "right thing to do," as sports marketing professionals point out, a new Washington NFL team logo "would be a boon for the National Football League and licensees such as Nike Inc., if previous pro-sports team switches are any indication."

It is time for Nike to walk the walk.  They certainly have the shoes in which to do so.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

Department of Justice Proposes an Indian Country-Specific Legislative Fix to Shelby County v. Holder

Last year in Shelby County v. Holder the Supreme Court struck down Section 4(b) of the Voting Rights Act (“VRA”), holding that “[o]ur country has changed” so that Section 5’s preclearance formula no longer “speaks to current conditions.”

In essence, Section 5 of the VRA allowed federal administration enforcement of the voting laws, rather than judicial enforcement, by forbidding certain states and local governments from implementing “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” without preclearance from the Department of Justice (“DOJ”).  “Covered jurisdictions” — jurisdictions subject to preapproval obligation of Section 5 — were determined by utilizing a formula found in Section 4(b) of the VRA.  Section 4(b) designated as “covered” those jurisdictions that (a) had maintained a “test or device” — i.e., literacy or knowledge tests, good moral character requirement, voter registration materials, etc. — as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election; (b) had a voting test or device and less than 50 percent voter registration or turnout as of 1968; or (c) had a voting test or device — including, this time, English-only voting materials in places where over five percent of voting-age citizens spoke a single language other than English — and less than 50 percent voter registration or turnout as of 1972.

As a result of this coverage formula, particularly redefinition of a “test or device” as English-only voting materials in 1975, numerous states and districts containing Indian reservations became covered.  The litigation that followed revealed not only that these jurisdictions continued to discriminate against Native American voters, but that Indian Country has not even gotten to the point of raising challenges to the complex contemporary vote dilution cases brought in significant numbers by other minorities.  Instead, Native Americans are still facing the antecedent issues regarding their inability to elect any representatives at all.  The Blackmoon v. Charles Mix County, No. 05-4017 (D.S.D.), litigation, for instance, revealed that under the County’s proposed voting plan there was “no reasonable probability that Native American voters could elect their candidate of choice” and that Native Americans were outright “discriminated against in registration and other parts of the voting process.”  Similar suits and proposed legislation submitted to the DOJ for preclearance revealed similar deficiencies.

Thus, shortly after the Shelby County decision was issued, I authored a law review article arguing that while it may be the case that the coverage formula does not “speak[] to current conditions” outside of Indian Country, this is not true within.  While the Section 4(b) formula may not be constitutional under Shelby County, I argued:

Indian-specific [voting] legislation is justified, necessary, and indispensable to the protection of the Native vote.  This is particularly true considering Congress’ plenary and exclusive authority over Indian affairs, including relations between states and tribes.  Indeed, if there is any area where limitations placed upon Congress by the Fifteenth Amendment would not prevent preclearance legislation, it is in Indian Country, where Congress has an affirmative trust and fiduciary obligation to ensure that Native American voters are fully enfranchised.

On June 9, the DOJ took the first step in making this suggestion a reality by initiating formal consultation between Tribal officials and the DOJ to discuss whether the DOJ should recommend to Congress Indian-specific legislation that would address the gaps created by the Shelby County decision.  The DOJ cites as Congress's authority to enact this legislation the "plenary power to legislate in respect to Indian tribes" and "Congress's unique obligation toward Indians -- in particular, its responsibility to ensure that they are included fully within the modern body politic -- [which] gives Congress the power to require fair treatment for American Indian and Alaska native voters."

The DOJ is set to circulate a consultation schedule by July 9.  All tribes are invited to offer input on the proposed legislation.

Ryan Dreveskracht is an Associate at Galanda Broadman, PLLC.  His practice focuses on representing tribal governments in public affairs, energy, gaming, taxation, and general economic development.  He can be reached at 206.909.3842 or ryan@galandabroadman.com. 

Galanda and Broadman Each Receive SuperLawyers Honor

Tribal lawyers Gabe Galanda and Anthony Broadman were each honored by Super Lawyers magazine for 2014; Gabe as a Washington “Super Lawyer” and Anthony as a “Rising Star.”

The award follows several recent honors for Galanda Broadman and its founding partners.  Galanda Broadman has received a prestigious Tier 1 ranking from U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law.

Gabe has also been named to The Best Lawyers in America in the practice areas of both Gaming Law and Native American Law, in 2014 and for the prior seven consecutive years. He was recently named a “Difference Maker” by the American Bar Association, too, with Anthony having been honored for his outstanding service by the Washington State Bar Association.

Galanda Broadman, “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests.  The firm, with six lawyers and 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, and 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 a past Chair of the WSBA Administrative Law Section, and author of “Administrative Law in Washington Indian Country.”  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.

New Tribal Energy Development Grants Available for FY 2014

On Tuesday, Assistant Secretary-Indian Affairs Kevin K. Washburn announced that the Office of Indian Energy and Economic Development (IEED) is soliciting grant proposals from federally recognized tribes for projects that promote the development of energy on Indian trust lands.  IEED has $11 million available in FY 2014 for grants.

While energy development in Indian Country has been slow going, recent changes in the law have provoked some interest in the initial stages of Indian Country energy development.  While some legal scholars have questioned the sincerity of these changes in law -- particularly because "Congress has shown time and time again that it is willing to pass these laws, but not to fund them," -- it appears that the Bureau of Indian Affairs and its IIED may, finally, be putting its money where its mouth is.

The Department's published solicitation can be found here.  Proposals must be submitted no later than 75 calendar days from the announcement date.

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.

Gabe Galanda Featured Law360 Commentator Re Bay Mills Decision

After the Supreme Court's shocking decision in favor of the Bay Mills Indian Country, leading law blog, Law360, quoted Gabe Galanda at length about the decision, in "Bay Mills Ruling To Fuel New Fights Over Tribal Immunity."

“BayMills is the most significant Supreme Court win for Native America in the last 25 years, maybe ever," Gabriel S. Galanda 
of Galanda Broadman PLLC told Law360. "It categorically affirms not only tribal sovereign immunity from state action, but also tribal sovereignty and Indian gaming in general. ... Still, tribal governments are nowhere near out of the woods.” 

For one thing, both Justice Elena Kagan, in a footnote to the majority opinion, and Justice Clarence Thomas in his dissent, alluded to an open question that remains: Does tribal sovereign immunity extend to an off-reservation tort, like an automobile accident caused by a drunk driver or casino patron? . . .

Lower courts could take the Supreme Court opinion as a cue to abandon sovereign immunity precedent if there's “special justification,” such as if a claimant were unable to secure some form of remedy otherwise, experts say.

“That passage [in the majority opinion] can be read by lower court judges as a signal to develop a remedy for a tort claimant, especially off-reservation, and allow the federal appellate process to go from there,” Galanda said.

Gabe and his partner Anthony Broadman were previously very critical of those federal powers that be, in particular, who did not moot the case before it reached the typically anti-Indian High Court (see here, and here.)

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

Gabe Galanda Publishes Re: Local/Global Native Prisoners' Religious Rights Movement

Gabriel Galanda published “To Geneva With Love: Native Prisoners’ Religious Rights Movement Goes Global.” The article appears in the May edition of King County’s Bar Bulletin, which is themed “Curtain.” The article begins with a citation to a famous U.S. Supreme Court prisoners’ rights case:

There is no iron curtain drawn be- tween the Constitution and the prisons of this country.” Nor is there an iron curtain drawn between international human rights norms and American prisons, especially insofar as Native American prisoners — or internationally speaking, American indigenous prisoners — are concerned.

Gabe goes on to explain how a local, grassroots, Native prisoners’ religious rights advocacy movement has ascended to national and international heights. He details various local, national and international legal and political interventions by the Native prisoners’ rights non-profit, Huy, and its allies, focusing on its advocacy via the United Nations:

By 2013, Huy aligned with longtime Native religious rights warriors, the Native American Rights Fund in Denver and the American Civil Liberties Union’s national and local chapters, to grieve the religious plight of Native inmates in state prisons throughout the United States to even higher powers. That coalition filed letters of allegation with the United Nations Office of the High Commissioner for Human Rights’ Special Rapporteur on the Rights of Indigenous Peoples, as well as the U.N. Human Rights Committee . . .

In June 2013, the Special Rapporteur on the Rights of Indigenous Peoples, joined by the U.N. Special Rapporteur on Freedom of Religion or Belief, wrote the U.S. State Department, requesting that within 60 days the government respond to the Huy coalition’s allegations and “provide any additional information it deems relevant to the situation.” The special rapporteurs posed a series of questions, including:

What measures exist to ensure the protection of the religious freedoms of Native American prisoners in state and local prisons? Specifically, what legal, policy or programmatic actions, if any, have federal and state Government authorities taken to ensure that Native American prisoners are able to engage in religious ceremonies and traditional practices as well as have access to religious items in state and local prisons?

Almost a year later, the State Department has yet to respond in any way to the U.N. special rapporteurs.

The United States’ continued silence is indicative of its and other nations’ failure to respect the right of American indigenous prisoners to freely exercise their religion, and to afford those prisoners with effective remedies when state correctional agencies and officers violate their rights.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California, and the founder of Huy (www.huycares.org) and Chairman of the Huy Board of Advisors. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda to Explain Tribal Sovereignty Issues Re State-Legalized Marijuana

On Monday, Gabe Galanda will address the Affiliated Tribes of Northwest Indians General Assembly, during ATNI's Mid-Year Convention this week at the Chehalis Tribe's Great Wolf Lodge, regarding the tribal and federal legalities associated with state-legalized marijuana, as well as related tribal economic opportunities.

The topic couldn't be hotter. Consider the following recent headlines about legalized marijuana in Indian Country:

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

So What Is a "Permanent Improvement" to Indian Land?

Much is being made of the new U.S. Department of the Interior leasing regulation, 25 C.F.R. § 162.017, which makes clear that "permanent improvements" to leased Indian land are “not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State." Related FAQs from those in tribal economic development, include: What is a permanent improvement? What makes an improvement permanent? And most commonly, does [insert type of real or personal property] constitute a tax-exempt permanent improvement? This blog attempts to help folks answer such pivotal questions from a legal point of view.

25 U.S.C. § 465 of course explicitly exempts Indian trust land from state and local taxation. In Mescalero Apache Tribe v. Jones, it was held that Section 465 exempts not only tribal land from state and local taxation, but any tax that the Court deems to be an equivalent to a tax on land, including any “permanent improvements” thereon. 411 U.S. 145, 158 (1973).

Such is true regardless of how the state characterizes those improvements. See Drye v. United States, 528 U.S. 49, 52-53 (1999) (federal law, not state law, defines “property and rights to property” for purposes of a federal tax statute); Confederated Tribes of Chehalis Reservation v. Thurston County Bd. of Equalization, 724 F.3d 1153, 1158 (9th Cir. 2013) (“[I]t is irrelevant whether permanent improvements constitute personal property under [state] law.”).

Under federal law, there is no one definition of a “permanent improvement” for taxation purposes. PPL Corp. v. C.I.R., 135 T.C. 176, 193 (U.S. Tax Ct. 2010).

Instead, courts look to six factors, the “primary focus” of which “is the question of the permanence of depreciable property and the damage caused to it or to realty upon removal of the depreciable property.” Id. (quoting Trentadue v. C.I.R., 128 T.C. 91, 99 (U.S. Tax Ct. 2007)). These factors are as follows:

(1) “Is the property capable of being moved, and has it in fact been moved?” Whiteco Industries Inc. v. Commissioner of Internal Revenue, 65 T.C. 664, 672 (U.S. Tax Ct. 1975).

(2) “Is the property designed or constructed to remain permanently in place?” Id.

(3) “Are there circumstances which tend to show the expected or intended length of affixation, i.e., are there circumstances which show that the property may or will have to be moved?” Id.

(4) “How substantial a job is removal of the property and how time-consuming is it? Is it ‘readily removable’?” Id. at 673.

(5) “How much damage will the property sustain upon its removal?” Id.

(6) “What is the manner of affixation of the property to the land?” Id.

There you have it. So is your improvement permanent?

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. 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.

Dreveskracht, Galanda Publish ABA Tribal Court Litigation Guide

The American Bar Association Business Law Section just published the 2014 edition of Annual Review of Developments in Business and Corporate Litigation, which includes a 41-page Tribal Court Litigation chapter co-authored by Indian litigators Ryan Dreveskracht and Gabe Galanda of Galanda Broadman. An excerpt from the chapter's introduction:

“Indian law,” a body of tribal, state, and federal law, is the foundation for every transaction arising in or from Indian Country.  Almost every arena of commercial practice now intersects with Indian law, including tax, finance, merger and acquisition, antitrust, debt collection, real estate, environmental, energy, land use, employment, and litigation.  Therefore, virtually every business lawyer or litigator needs to have some working knowledge of Indian law.  This chapter seeks to provide that basic understanding.

Gabe served as the Editor-in-Chief of Annual Review for the 2007 through 2010 editions, and has co-authored the Tribal Court Litigation chapter each year since 2006. This is Ryan’s third year co-authoring the chapter, and his first year as its lead author.