Shame On You, ACLU, For Defending Dan Snyder's "Racist" Trademark

We have closely collaborated with the ACLU in defense of Native civil liberties (see here and here) and even advertised ourselves as proud partners of the ACLU.  So our disappointment with the ACLU's decision to file a friend-of-the-court brief in support of Dan Synder's R*****ns trademark runs deep. The ACLU is the most valiant and effective defender of the First Amendment; we are grateful.  They are so formidable that the mere filing of the ACLU's amicus brief could foretell victory in U.S. District Court for Dan Snyder.

Beyond that fear, there are primarily two troubling things about the ACLU's support of the R*****ns trademark.

First, the ACLU downplays the impact of the R word by merely describing it as "outdated, racist language." But they fail to appreciate that the word is not just racist--it connotes genocide, defined as:

1. the deliberate killing of a large group of people, especially those of a particular ethnic group or nation.

   synonyms: mass murder, mass homicide, massacre; annihilation, extermination, elimination, liquidation, eradication,decimation, butchery, bloodletting; pogrom, ethnic cleansing, holocaust

Consider:

Indeed, it is intellectually dishonest to simply dub the R word "racist."  The First Amendment, at least via trademark protection, must not protect the rhetoric of genocide.  Such language, especially when used by a for-profit NFL football franchise, is in fact "immoral" as contemplated by Section 2(a) of the Lanham Act.

The ACLU cites disputes over trademarks protection for the words "the Slants" and "Dykes on Bikes," arguing that "the reappropriation of terms that have historically disparaged marginalized groups is a common way for those same groups to reclaim the meaning of those terms and change social attitudes."

But these examples are apples to oranges as to the R word.  Those other "racist" or offensive words are not necessarily the language of genocide.

Would the ACLU advocate for free speech protection for a trademarked term that casts light on the mass murder of Jews at Auschwitz?  Or that includes the N word vis-a-vis the massacre of Africans during American slave trade? Or that plays on sexual mutilation of Rwandan women?  I would hope not.

Second, who are the ACLU lawyers who authored the brief to say that the R word is simply "racist" and thus to ignore that language as genocidal?  On the topic of the R word, brother Gyasi Ross rightly observes:

This is about us speaking for us—there are too many non-Natives trying to tell us what we should or should not be offended by.

Did those lawyers even bother to consult with any Natives before taking it upon themselves to advocate for tolerable racism against America's indigenous peoples, under guise of free speech?  We presume not, knowing for certain that they did not bother to even consult with NCAI before filing the brief.

Shame on you, ACLU.  Hopefully the next time you attempt to speak for any historically disparaged, massacred group, you will honor morality over legality.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

State Superior Court Strikes Down HB 1287, and PILTs as "Taxes"

On Wednesday, King County Superior Court Judge Mary Roberts ruled in rather scant fashion that the "payment in lieu of tax" (PILT) component of Washington State Engrossed Substitute House Bill 1287 is unconstitutional.  That bill was heralded as an advancement in state-tribal tax policy, as it created parity for tribal governments as to fee lands they own and use for government revenue-raising purposes. The decision was handed down in City of Snoqualmie v. King County, which the City filed in October 2014 against King County and its officials as well as the State and its Department of Revenue, after the County negotiated a PILT to be paid by the Muckleshoot Tribe to the County regarding the Tribe's Salish Lodge.

The PILT was part of an MOU between the County and the Tribe by which the Tribe agreed to a $103,00 in PILT in 2015 for the Salish Lodge, despite the fact that governments do not typically tax other governments any amount of money (unless of course the taxed governments are tribal).

The City had always opposed House Bill 1287, fearing lost property taxes on the Lodge (which the lawsuit estimates to be $25,000 compounded by 1% annually) and speculating about an additional  "$428,000-plus revenue loss" due to rumored development plans by the Muckleshoot and Snoqualmie Tribes.

Specifically, Judge Roberts ruled House Bill 1287 unlawful per Article VII of the state Constitution because a PILT "is not imposed at an equal tax rate and does not produce equality in valuing the property taxed."

Further, the Judge ruled that insofar as House Bill 1287 "unlawfully delegates [taxing] authority to Indian tribes and/or the State Department of Revenue," Section 8 of the bill "violates Article VII Section 1’s command that 'the power of taxation shall never be surrendered, suspended or contracted away. [sic]"

The ruling came down quickly on cross-summary judgment motions brought by the City and Revenue.  Judge Roberts denied the City's summary judgment request on its public records act claims against Revenue, but those claims could be withdrawn or settled so that the PILT ruling can proceed to appeal.

Hopefully Washington's appellate courts will restore property tax parity amongst our state's sovereigns.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Tribal Carbon Credit Dealing Is Where It's At--Or Will Be

We are proud to have counseled the Round Valley Indian Tribes in regard to their groundbreaking carbon offset credit deal (news here and here).  That carbon credit deal is the first to involve Indian trust lands in the State of California, if not the entire country.

More generally, we have expertise in tribal renewable energy initiatives.  Consider Ryan Dreveskracht's law review articles, “Alternative Energy in American Indian Country: Catering to Both Sides of the Coin,” and “Economic Development, Native Nations, and Solar Projects.”

Galanda Broadman was recently named to the 2015 Edition of U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law. With offices in Seattle, Washington and Bend, Oregon, the firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in matters of Indian Treaty rights, tribal sovereignty and taxation.  

Tribal Marijuana Lawyers

Amidst the tribal marijuana gold rush that was set off by the DOJ "Wilkinson Memo" in December, some folks are selling snake oiled legal services.  Others are intelligently discussing the legal issues, and risks.

Having represented tribal clients in the medicinal marijuana space for years, and written on the topic for years prior to the Wilkinson Memo, we understand full well both the tribal economic benefits and federal legal risks associated with cannabis legalization and regulation.  

Here are our--in particular, Anthony Broadman's--thoughts on various tribal marijuana-related topics:

• Taxation, or "value added" tax-exemption
• Compacts
• Civil regulatory power
• Per capita distributions

In all, we critically ask: Is Marijuana The Next Tobacco For Indian Country?

Galanda Broadman was recently named to the 2015 Edition of U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law. With offices in Seattle, Washington and Bend, Oregon, the firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in matters of Indian Treaty rights, tribal sovereignty and taxation.  

Pot Capitas: Distributing The Fruits Of Tribal Land

By Anthony Broadman

Assuming the bottom does not drop out of the legal weed market, and that Tribes are able to begin regulating and selling marijuana within their jurisdictions, how will pot farming revenue be spent? If marijuana is a viable business for Tribes, Tribal governments can expect calls for profits to be “per capped” through per-member distributions. Whether per capitas are good governance is a question for Tribes and their constituents.  But the particular treatment of pot per capitas raises new questions about federal trust assets, federal taxation, and whether distributions can provide a new non-taxable trust resource for Tribes and their members.

A profitable tribal pot economy requires several leaps of faith and what would formerly have been some wild assumptions. But presuming the reservation market takes shape, Tribes will likely use the revenue from pot cultivation, like all economic development initiatives, to provide essential governmental services to their members. We should expect tribal pot revenue to offset the burdens of legal pot, to be allocated to education, law enforcement, marijuana regulation, anti-drug initiatives, public health efforts, and the other sorts of programs Tribes have long provided within and beyond their territory. But with profits often come calls for per capita distributions.

The general rule is that every cent of your wealth, whether you are a member of an Indian tribe or not, is taxable by the United States. Section 61(a) of the Internal Revenue Code provides that, except as otherwise provided by law, gross income means all income from whatever source derived.  Under Section 61, Congress is allowed to tax every “accession[] to wealth.”   Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). Indians are citizens subject to the payment of these income taxes. Squire v. Capoeman, 351 U.S. 1, 6 (1956).

One narrow exception to this rule is that per capita distributions made from funds the Secretary of the Interior holds in a Trust Account for the benefit of a tribe are generally excluded from the gross income of the members receiving the distributions.

Practically, proceeds from trust assets or trust resources are deposited into a tribal Trust Account for a tribe and that tribe subsequently makes a per capita distribution using funds from that Trust Account. Again, those payments are generally not taxable to members. This is different than the treatment of gaming per capitas. The per capita distribution of gaming revenue is taxable to each recipient.

Could trust assets or resources include marijuana grown by a Tribe on Tribal land? Trust resources means any element or matter directly derived from Indian trust property. 25 C.F.R. § 115.002. In fact, it may not be optional for the United States to accept the revenue from tribal pot cultivation into trust. According to federal trust regulations, the Secretary of the Interior “must accept proceed on behalf of tribes or individuals from the following sources . . . [m]oney directly derived from the . . . use of trust lands.” 25 C.F.R. § 115.702. The IRS has wavered on whether trust per capitas are taxable in the last few years. But after Tribal resistance, provided clarity last year in Notice 2014-17.

The IRS often rejects as trust resources that revenue which may be derived from land but is really mischaracterized business profits. But as for marijuana grown on tribal trust land, which is then harvested and sold by the Tribe in the first instance, the resulting revenue is almost certainly money directly derived from the use of tribal trust land. Indeed, there is no difference between pot and timber except that pot is an illegal schedule I controlled substance.

Whether the Secretary can or would accept proceeds from the sale of marijuana grown on Tribal lands – like it does timber – into trust is a different question. Marijuana remains illegal under federal law and even though the DOJ may not be enforcing marijuana laws, participating in what would effectively be the banking of illegal drug revenue feels like a bridge too far. After all, if they won’t let banks easily accept pot profits, how could the feds themselves deposit such funds? Still, the potential for distribution of pot profits could provide tribes with a new source of non-taxable distribution income for members. That, given the stagnating gaming per capita landscape, is a potential novel benefit as Tribes balance the harms and benefits of the marijuana economy.

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. Marijuana is illegal under federal law.

Jared Miller Joins Galanda Broadman

Galanda Broadman has grown again, by adding Jared Miller, who previously served as a law clerk for the Wyoming District Court andShoshone & Arapaho Tribal Court.

“Jared is a consummate self-starter,” said Gabe Galanda, the firm’s managing partner.  “He brings a breadth of tribal court experience to our team, which we are really excited about.”

Jared’s practice focuses on tribal court litigation and representing businesses and tribal governments in public affairs. He is licensed to practice law in more than a dozen tribal jurisdictions, where he litigates civil matters. A former newspaper reporter, Jared helps tribal organizations in responding to public and private crises.

Jared is a graduate of University of Wyoming College of Law, and the University of Montana School of Journalism.

Galanda Broadman was recently named to the 2015 Edition of U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law.  The seven-lawyer firm, which styles itself  “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests.

With offices in Seattle, Washington and Bend, Oregon, the firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in matters of Indian Treaty rights, tribal sovereignty and taxation.

Anthony Broadman on Tribal Marijuana Law

Anthony Broadman has quickly become recognized nationally for his insight regarding commercial marijuana legalization in Indian Country.

Having represented tribal clients in the medicinal marijuana space for a good while, Anthony blogged on the federal, state and tribal legalities associated with commercial pot several years ago, and since, meaning well before the DOJ memo issued in December 2014 and the ensuing tribal pot "gold rush."

He has since been quoted or featured on the subject by the AP, Time, VICE News, and NPR (audio).  Here's Anthony's latest blog.

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.

Tribal-State Marijuana Compacts Make Good Neighbors

By Anthony Broadman

As Washington’s legal marijuana landscape evolves, certainty has been evasive. So for Tribes who are considering wading into the pot economy, knowing that the state will not interfere in or try to tax new pot ventures would be exceedingly valuable. As we’ve noted before, good Tribal-State agreements make good neighbors. And that will certainly be true for marijuana tax compacts like those being contemplated Monday by the House Committee on Finance.

Just as critical as the inter-local peace that pot compacts would bring, is the acknowledgement from all sides that legal marijuana, grown on the reservation, is not subject to state taxation. It’s important for pot. But it’s more important for whatever sustainable economic ventures come next for Indian Country, whether it be agricultural like pot, or manufacturing microchips or aerospace parts—whatever value Tribes generate within their jurisdictions. The proposed legislation recognizes what a federal court almost certainly would, that “tribes [are exempt] from state sales, excise, and use taxes with respect to tribal commercial activities involving marijuana[.]”

And the certainty of that statement alone is worth supporting HB 2000 and Senate companion SB 5848.

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.

Gabe Galanda Delivers Scholarship Address to Arizona College of Law

Galanda Broadman Native Law Student Scholarship Giving In The News