Truth & Reconciliation Re: The Fish Wars

Yesterday Governor Jay Inslee signed Washington HB 2080, which vacated pre-1975 state court convictions of tribal members who were engaged in Treaty fishing activities.  Reconciliation.

Today a piece by Gabe Galanda, "Washington Tribal/State Relations Evolving, But Further Work Is Needed," was published in the Spring 2014 edition of Indian Law Newsletter.  Truth.

A passage:

Over the next decade Washington’s “fish wars” ensued, with state and local law enforcement utilizing criminal arrest to deprive Indians of Treaty-reserved fishing rights, making matters even worse.  An epic clash of sovereigns ensued in the U.S. v. Washington litigation, resulting in a controversial decision by U.S. District Court Judge George Boldt that guaranteed the Tribes half of the fish harvest and by 1979, a momentous Indian victory before the U.S. Supreme Court.

The state was so resistant of Judge Boldt’s decision that the Ninth Circuit Court of Appeals compared it to states in the Deep South that refused to abide by federally mandated desegregation.  “Except for some segregation cases . . . the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century,” appellate court justices said of the Boldt Decision.  In the end, the judicial affirmation of the Tribes’ reserved Treaty right to fish, expressed as “their source of food and commerce,” solidified a foundation for the economic development we are witnessing today throughout Washington Indian Country.

Above all, though, “the Boldt Decision” entrenched Washington Tribes as a legal and political force to be reckoned with.

And a Tribute:

He dedicates this article to those Washington Indians who fought the fish wars and to the tribal lawyers who won the Boldt Decision.

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 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda Signs On to Supreme Court Brief Re: Native Prisoners’ Religious Rights

Gabe Galanda, Chairman of the Huy Board of Advisors, signed on to a U.S. Supreme Court amicus brief along with counsel for the Native American Rights Fund (NARF) and National Congress of American Indians (NCAI).

The brief urges the High Court to accept review of the Knight v. Thompson case, which involves an Alabama prison grooming policy that restricts Native inmates from wearing unshorn hair in accordance with tribal religion, as a companion case to Holt v. Hobbs, a similar case that the Court recently accepted for review.

Hobbs involves an Arkansas prison grooming policy that prohibits an inmate from growing a one-half-inch beard consistent with his religion.

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 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda to Lecture on Tribal Disenrollment Law at Berkeley

On Monday, March 17, Gabe Galanda will lecture at UC Berkeley regarding the legalities associated with tribal disenrollment controversies. His remarks will be for the “Native American Critical and Legal Policy” seminar taught by Ethnic Studies professor, Thomas Biolsi. Gabe will speak from two essays recently published by his law firm: “An Essay on the Federal Origins of Disenrollment” and “An Essay on the Modern Dynamics of Tribal Disenrollment.” Professor Biolsi has included Roberts v. Kelly, a disenrollment controversy involving the Nooksack 306 that is currently pending before the Nooksack Judiciary, in his course syllabus. 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 206.691.3631 or gabe@galandabroadman.com.

An Essay on the Modern Dynamics of Tribal Disenrollment

Disenrollment is predominately about race, and money, and an "individualistic, materialistic attitude" that is not indigenous to tribal communities.

Because many tribes have maintained the IRA’s paternalistic and antiquated definition of “Indian” vis-a-vis blood quantum (as discussed in "An Essay on the Federal Origins of Disenrollment"), tribal membership has largely become “an explicitly racial conception of Indian identity.” Suzianne D. Painter-Thorne, If You Build It, They Will Come: Preserving Tribal Sovereignty in the Face of Indian Casinos and the New Premium on Tribal Membership, 14 Lewis & Clark L. Rev. 311 (2010).

The racial construct has worked well for disenrollment as "American Indians have one of the highest rates of interracial marriage in the U.S."  Gosia Wozniacka, Disenrollment leaves Native feeling 'culturally homeless', Associated Press, Jan. 21, 2014.  Indeed, Indians of any quantum (defined as "portion") of Indian blood are by federal design, multi-racial. In addition, "many Native Americans don’t live on reservations, speak Native languages or 'look' Indian, making others question their bloodline claims." Id.  In those illustrative ways, Indian conceptions of both race and class converge, with tribal classism also catalyzing disenrollment.

In turn, tribal officials who wish to target political foes or large swaths of politically weak or unpopular members, can “voluntarily invoke race-based definitions of ‘Indian’ [to] narrow the pool of tribal members, perhaps in an effort to limit gaming revenue and federal dollars to [those targeted] tribal members.”Painter-Thorne,  supra.  These disenrollment stories bear this out.   See e.g. Liz Jones, 'We'll Always Be Nooksack':Tribe Questions Ancestry of Part-Filipino Members, NPR/KUOW, Dec. 16, 2013; Joanne Barker, The True Meaning of Sovereignty, New York Times, Sept. 16, 2011.  

The “forced transition to a cash economy” has likely played a large part in the dramatic spike in disenrollment as well.  Jana Berger & Paula Fisher, Navigating Tribal Membership Issues, Emerging Issues in Tribal-State Relations 61, 66 (2013).  Prior to the recent disenrollment epidemic, which is estimated to have already vanquished over 11,000 Indians, tribal governments were very inclusive, frequently wanting to have large "membership" numbers.  Aside from a greater amount of funding from federal agencies relative to increased tribal membership, from a practical standpoint tribal governments recognized that “there is strength in numbers.”  Id. 

But over the last couple decades, as tribes became more dependent on the U.S. economic free-market system, primarily through gaming entrepreneurship, disenrollment began to rear its ugly head.  According to Charles Wilkinson,

Just as federal education practices reverberated throughout tribes, so too did the forced transition to a cash economy. The concept of sharing, integral to Indian societies, did not jibe well with the individualistic, materialistic attitude that drove the nation’s economic system. As one Navajo stated, “When a relative needed help, you helped them out. When you needed something else, you could rely on a relative to help out, it all worked out in the long run. With money it doesn’t work anymore, now the relative with the money is expected to help out, what is needed for most everything is money and the poor relatives never have any.”

Blood Struggle: The Rise of Modern Indian Nations 54 (2006).

As Professor David Wilkins observes, tribal communities historically used ceremony and prayer to resolve intra-tribal tension or conflict; because traditionally speaking, "you don't cast out your relatives." Wozniacka, supra.  But today, when the political going gets rough in tribal communities, the individualistic, materialistic Indian attitude that Professor Wilkinson describes, increasingly leads to disenrollment of one's own relatives--instead of towards any holistic or indigenous values-based solution.

Galanda Broadman is an American Indian owned firm dedicated to advancing tribal legal rights and Indian business interests. The firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in the areas of Indian Treaty rights, tribal sovereignty, taxation, commerce, personal injury, and human/civil rights.

An Essay on the Federal Origins of Disenrollment

Disenrollment is not indigenous to Native America.  It is a creature of the United States. The origins of tribal "disenrollment" are traced to the United States’ paternalistic assimilation policies of the 1930s.  (Federal Indian rolls and removal therefrom date back even further--to the early 1800s.)

In 1934 the U.S. Congress passed the Indian Reorganization Act (“IRA”), wherein the federal government took an extremely active role in framing tribal membership rules.  The IRA contained a definition of who would be recognized as an indigenous person by the federal government: The individual must be a descendant of a member residing on any reservation as of June 1, 1934, or a person “of one-half or more Indian Blood.”  25 U.S.C. § 476.

The United States’ intent was to limit membership “to persons who reasonably can be expected to participate in tribal relations and affairs.”   Office of Indian Affairs, U.S. Dep't of the Interior, Circular No. 3123 (1935), reprinted in 2 Am. Indian Policy Review Comm'n, 94th Cong., Task Force No. 9 Final Report app. at 334 (Comm. Print 1977).  The IRA also urged tribes to adopt a constitution and included a boilerplate that tribes were encouraged to adopt.  And because tribal constitutions were subject to federal approval, the IRA definition of “Indian,” including its blood quantum requirement or some variation thereof, as well as concepts of "disenrollment," found their way into most tribal constitutions, even those that did not adopt the boilerplate IRA constitution.

In fact, even those tribes that opted to forego adopting a constitution were often persuaded to adopt these concepts somewhere in their organic law as a “consequence of the [federal government]’s control over federal services and tribal monies.”  Suzianne D. Painter-Thorne, If You Build It, They Will Come: Preserving Tribal Sovereignty in the Face of Indian Casinos and the New Premium on Tribal Membership, 14 Lewis & Clark L. Rev. 311, 341 (2010).

Thus, “while it is true that membership in an Indian tribe [wa]s for the tribe to decide, that principle is dependent on and subordinate to the more basic principle that membership in an Indian tribe is a bilateral, political relationship” under which the United States had set the terms.  Margo S. Brownell, Who is an Indian? Searching for an Answer to the Question at the Core of Federal Indian Law, 34 U. Mich. J.L. Reform 275, 307 (2001).  The Indian Self-Determination Education Assistance Act of 1975, additionally required that tribal governments devise formal membership regulations, in order for the tribe to receive certain federal self-determination funding.  The United States suggested such regulations, which like its boilerplate IRA constitutions, included notions of blood quantum and disenrollment.

In all, for the last 80 years, the United States has set the terms of tribal membership, i.e., "Indian," "blood quantum," "membership," "base rolls," and of course "disenrollment."  And for good measure, tribal acceptance and implementation of those unconscionable terms have been conditions precedent to self-determination funding since the 1970s.

Despite having invented disenrollment and foisted it upon tribal governments, the United States now suggests that it has no "business trampling on tribal sovereignty and self-governance" by interceding in tribal disenrollment disputes.  Or, as Nooksack Councilwoman Michelle Roberts -- a member of a the Nooksack 306 -- put it to Assistant Secretary of Indian Affairs Kevin Washburn: "It is Frankenstein in Indian country that the United States has created, and now ignores."

Galanda Broadman is an American Indian owned firm dedicated to advancing tribal legal rights and Indian business interests. The firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in the areas of Indian Treaty rights, tribal sovereignty, taxation, commerce, personal injury, and human/civil rights.

Tribal Civil Rights Lawyer Ryan Dreveskracht Publishes Indian Voting Rights Article

Ryan Dreveskracht has published an important Indian voting rights law review article, "Enfranchising Native Americans After Shelby County v. Holder: Congress's Duty to Act," in the National Lawyers Guild Review.

Ryan 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 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.

Gabe Galanda Stumps Against Interior's Land Buy Back; Serves as Professor in Residence

This week, Gabe Galanda visited the University of Arizona College of Law in Tucson for a speech at the 2nd Annual Tribal Lands Conference, and a Professorship in Residence at the Indigenous Peoples Law & Policy Program. Gabe's speech at the Conference, which was themed "The Cobell Settlement Land Buy-Back Program for Tribal Nations," was titled: "The Perils of Indian Law Buy Back." He explained that "while Interior’s plan disclaims any facilitation of forced sales under 25 U.S.C. 2204(a), the $1.55 Billion in 'buy back' monies will catalyze controversial intra-tribal forced sales."

Gabe further explained how any such forced sale could violate various federal laws, including the Fifth Amendment of the U.S. Constitution and the United States' trust fiduciary duty at common law, as well as international human rights law, including Articles 1 and 10 of the United Nations Declaration on the Rights of Indigenous Peoples and Article 11 of the Rights of Man and of the Citizen. His slides are available here, and his prior published commentaries are here.

During his Professorship in Residence, Gabe engaged indigenous law students during a program moderated by Dean Marc Miller, in the development series called "A Conversation With...," which features prominent law school alumni. He also delivered a lecture to Professor Ray Austin's class titled, "Tribal Economic Development: Looking Through the Prism of Indian Taxation & Sovereign Immunity."

In his lecture, Gabe explained very recent developments in federal Indian law regarding the powers of tribal taxation, sovereign immunity and territorial authority. His slides are available here.

Gabriel “Gabe” Galanda is the Managing Partner of 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.

Disenrollment At Nooksack Via 1-800 Number, With "No Questions Asked"

Instructions for Nooksack disenrollment hearings: 1. Call a 1-800 number 2. "DO NOT call in late" 3. "Ensure that you use a landline" 4. Wait on hold "for 10 minutes to 2 hours" 5. Enjoy the "music" 6. State your full name and number for the record 7. Present your case in less than 10 minutes 8. "No questions will be entertained" 9. Await the "Tribal Council's decision in the mail"

Read, and believe, it for yourself, here.

We Are Proud Partners of the ACLU

In 2013, we were honored to collaborate with the American Civil Liberties Union (ACLU) in defense of tribal sovereignty before the Washington State Supreme Court in State v. Clark, and in defense of indigenous prisoners' religious freedoms from California to Geneva, Switzerland. We look forward to again locking arms with the ACLU, in defense of what is right.

Dear Gabriel,

Just a quick thanks for all you did during 2013 to support the ACLU's mission.

I always tell people that our organization has a very special group of supporters. And, once again, you proved it. We ended the year with a dramatic and urgently needed show of financial support.

And thanks to you, we are able to begin the new year picking up on the energy and momentum you helped create over the last 12 months. With your ongoing help, we will keep driving freedom forward.

You're the best,

Anthony D. Romero Executive Director, ACLU

Tribal Disenrollment Defense Lawyers

We are proud to represent the Nooksack 306 and the Grand Ronde descendants of Chief Tumulth, as well as other American Indian citizens facing disenrollment. We do not prosecute disenrollment actions; we defend against them. Our sworn duty is to ensure that fundamental human rights and guaranteed civil rights are honored during any disenrollment actions. Too frequently, they are not.

Our work on behalf of the Nooksack 306 is featured here on Turtle Talk, and our work for the Chief Tumulth descendants can be found here.

Galanda Broadman is an American Indian owned firm dedicated to advancing tribal legal rights and Indian business interests. The firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in the areas of Indian Treaty rights, tribal sovereignty, taxation, commerce, personal injury, and human/civil rights.

There is no more critical a legal situation to an American Indian than a disenrollment action. Legal counsel is almost certainly required. If you facing disenrollment, call the firm's Managing Partner Gabe Galanda to see if we can help.