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.

Skateboarding & Saving the Lives of Indian Youth

This weekend saw the grand opening of the Port Gamble S'Klallam Skatepark (featuring the amazing artwork of Nooksack tribal member Louie Gong).  The skatepark, made possible with donations from the Sheckler Foundation and Grindline, is one of many that we have seen popping up all over Indian country.  Much more than concrete and metal, these parks save lives.

Despite what is portrayed on the X-Games and in Mountain Dew commercials, skateboarding is not a sport.  It is not a hobby.  In the words of Ian MacKaye, "Skateboarding is a way of learning how to redefine the world around you. It’s a way of getting out of house, connecting with other people, and looking at the world through different sets of eyes."

In this way, skateboarding does what basketball, football, and other organized sports do not. Indeed, skateboarding is extremely personal.  It allows a person to develop a style that is all his or her own, and it encourages creativity and thinking outside of the box.  Which is why it attracts misfits -- kids that do not fit in anywhere else are embraced by skateboarding.  Unfitting pants; oversized t-shirts; ripped up shoes.  These were all popularized by skateboarding, trendset by parents who could afford to buy their kids only one set of clothes a year to "grow into."  While this fashion faux pas would get you beat up at school, skateboarding embraced it.

To say that skateboarding isn't a sport is not to say that it isn't physically demanding.  To the contrary, skateboarding takes a tremendous amount of physical strength and endurance.  And, despite the myth skateboarders are stoners and drug addicts, just the opposite is true.  Junkies do not frontside flip 10-stairs. Indeed, studies have found that kids who skateboard are less likely to engage smoking, drinking, and drug use. One study on the Long Beach City Skatepark, located in a very high crime area of the city, found that from when the skatepark was installed in 2003 to 2008, drug related incidents dropped 60.9 percent.

Skateboarding provides native youth with freedom -- the freedom to take control of their lives, their bodies, the world around them, and their futures.

Native Americans and Alaska Natives are twice as likely to be diagnosed Type 2 diabetes.  Native kids that skateboard are much less likely to suffer complications from diabetes, and are 48-percent more likely to stay healthy as an adult (compared to 20-percent for kids who play organized sports).

Native American families are 50 percent more likely to endure domestic violence.  Skateparks provide a safe haven for Native kids, creating opportunity for social interaction with other youth which helps develop trusting and cohesive relationships that many of these kids just cannot receive at home.

Native Americans have one of the highest dropout rates in the Nation.   Skateboarding gives an outlet for hyperactive children who have trouble learning, and has been shown to improve performance in the classroom.

Young Native Americans are more than three times more likely to commit suicide -- up to ten times on some reservations.  Skateboarding creates a supportive environment for these at-risk youth.   You don’t have to be a cool kid.  You can’t get cut from a team.  You can show up with clothes that don't fit you, and nobody cares.  You can be a weirdo -- in fact, being an individual is encouraged.  Kids that skateboard generally have less anxiety, less depression, less feelings of hopelessness, and more satisfaction with life.

For Native youth trapped within the confines of the Rez, skateboarding gives an identity, a purpose, and a meaning to their lives.  When you fall down, you get back up and try again.  And skateboarders fall a lot.  Mad props to the Port Gamble S'Klallam Tribe and all of those who are helping its Native youth rise up.

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 tribal economic development.  Prior to practicing law, Ryan could be found shredding at any number of the skateparks between Southern California and Northern Washington, often sleeping in a van and living off of dried top-ramen.  He still skates.  He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Washington Department of Revenue Affirms Tax Preemption for Tribal Land Improvements

Prompted by the Ninth Circuit Court of Appeals’ decision in Confederated Tribes of the Chehalis Reservation v. Thurston County Board of Equalization, 724 F.3d 1153 (9th Cir. 2013),  the Washington State Department of Revenue (“DOR”) issued Excise Tax Advisory Interpretive Statement No. 1.1.2014 yesterday.  The Interpretive Statement clarifies that permanent improvements on Indian trust lands are exempt from state and local property taxation. In 2007, Thurston County began assessing “personal property” taxes on the Great Wolf Lodge, a  $172 million hotel and resort.  The County recognized that the land underneath the Lodge was not taxable, but concluded that the Lodge itself was not tax-exempt because it was owned by a corporation chartered in Delaware, in which the Tribe held a majority 51% share and a non-Indian development company held the minority 49% share.  From 2007 to 2009, the County assessed roughly $2.5 million in taxes against the Lodge.

The Tribe filed suit and immediately moved for a preliminary injunction, arguing that the state tax was per se invalid because it was federally preempted by 25 U.S.C. § 465.  That statute states, in relevant part, that the Secretary of the Interior may acquire “any interest in lands, water rights, or surface rights to lands, within or without existing reservations,” and to hold title to such lands and rights “in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired.”  The statute also provides that “such lands or rights shall be exempt from State and local taxation.”  The District Court, however, denied the motion, holding that “[a]ssessing a tax against a partially private and partially Indian-owned limited liability company is not an injury” for which a preliminary injunction was warranted.  Confederated Tribes of Chehalis Reservation v. Thurston County Bd. of Equalization, No. 08-5562 (W.D. Wash. Oct. 21, 2008), ECF No. 24, at 8.  (Ironically, a for-profit business with at least 51% Indian ownership can be treated as an Indian entity under both federal and state law.  See 25 U.S.C. § 1452(e); 48 C.F.R. § 26.101; Wash. Admin. Code § 458-20-192(5)(d)).

After completing some discovery, the Tribe moved for summary judgment.  Relying upon United States v. Rickert, 188 U.S. 432 (1903), the Tribe again argued that “permanent improvements on Indian trust lands are exempt from taxation” due to federal preemption by 25 U.S.C. § 465.  The District Court denied the motion, holding that the “rule of Rickert” did not “bar the taxation in question because this case involves a significantly different factual scenario.”    Confederated Tribes of Chehalis Reservation, No. 08-5562 (W.D. Wash. Jul. 2, 2009), ECF No. 61, at 13.  The District Court distinguished Rickert by essentially holding that federal law only preempts improvements on Indian trust land when Indians take part in stereotypical “Indian” activity on those lands — and commercial activities do not meet this test.  According to the Court,

it cannot be said that the improvements are ‘occupied’ by the Tribe as [the tribal majority-owned corporation] currently uses the improvements to operate a hotel, conference center, and indoor water park.  Therefore, the Rickert rule that was implemented to protect a homestead and associated livestock is, in this Court’s opinion, inapplicable to privately owned commercial business ventures even though the improvements are on land held in trust by the United States. 

Id. at 13-14.  The parties then cross-moved for summary judgment.  Having been denied relief under Section 465 preemption, the Tribe was left to argue that the tax was barred under White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), which balances inherent tribal sovereignty with state and federal interests to determine whether, in the specific context, the exercise of state authority would “unlawfully infringe ‘on the right of reservation Indians to make their own laws and be ruled by them.’”  Id. at 142 (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)).  The Tribe argued that the relevant federal and tribal interests clearly outweighed any interest of the County.  The County, of course, argued to the contrary.  The District Court held for the County, again finding that the Tribe’s operation of the Lodge simply was not “Indian” enough to outweigh the County’s interests in funding “local law enforcement, emergency medical and fire services, and road maintenance services.”  Confederated Tribes of Chehalis Reservation, No. 08-5562, 2010 WL 1406524, at *9 (W.D. Wash. Apr. 2, 2010).

The Tribe appealed, and the Ninth Circuit Court of Appeals overruled the District Court.  The Ninth Circuit held that the Tribe was correct all along, explaining that it was “clear that where the United States owns land covered by § 465, and holds it in trust for the use of a tribe (regardless of ‘the particular form in which the [t]ribe chooses to conduct its business’), § 465 exempts permanent improvements on that land from state and local taxation.”  Confederated Tribes of Chehalis Reservation, 724 F.3d at 1157 (citing  Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)).  Bracker, the Court held, simply had no application to “property taxes on permanent improvements” on Indian trust land.  Id. at 1159.

The Interpretive Statement issued by the DOR memorializes the Ninth Circuit’s holding in Confederated Tribes of Chehalis Reservation and serves as the State of Washington’s go-to document for determining whether the state has intruded on tribal sovereignty through state or local taxation.  Along with the Interpretive Statement, the DOR has issued a “FAQs for County Assessors” that discusses, for example, the state’s inability to tax any type of permanent improvement on tribal trust lands, including buildings, orchard trees, and mobile homes that are permanently attached to land.

What is more, the document informs property owners that should not have been taxed in prior years under the Chehalis decision, of their ability to receive a refund from the State.  Under Wash. Rev. Code § 84.69.030, property owners have three years from the date the property tax was due to file a claim for refund.  In order to claim a refund of taxes that were due April 30, 2011, for example, a claim must be filed with the county treasurer by April 30, 2014.

Hats off to the Chehalis Tribe and their resolve in obtaining this huge, and rare, Indian tax win for all of Washington Indian Country.

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

ATF Withdraws PACT Act FAQs; Downgrades Tobacco Investigations?

As reported this week in the Times Argus, the ATF has withdrawn a controversial set of Frequently Asked Questions (FAQ), which states were using to regulate and tax--and essentially vitiate--inter-tribal tobacco commerce. While some speculate that ATF has in very recent times diverted federal attention away from tobacco-diversion investigations, Indian Country should remain vigilant in defense of state PACT Act, CCTA and other tobacco tax enforcement efforts.

According to the Times Argus:

ATF took down a frequently-asked-questions Web site posting attached to its explanation of the PACT Act. The FAQ stated that the law clearly applied to wholesalers and distributors on Indian reservations.

“We are concerned that the removal of the FAQs may evidence a determination by ATF to narrow its current interpretation of the PACT Act to exclude various tribal cigarette sales and shipments,” [Idaho AG Lawrence] Wasden wrote in the Feb. 21 letter to Holder. . . .

ATF took the FAQs down after meeting with tribal representatives because the answers were three years old and “it was time to review (them) based upon the passage of time and the experience gained in enforcing the PACT Act,” [ATF spokeswoman Ginger] Colbrun said in an email statement. “We’ve committed to reviewing the FAQs, but not to making any specific changes unless we conclude they are warranted by the law.” . . .

In recent years, ATF has backed off enforcement of laws governing “tobacco diversion” — underground smuggling of cigarettes from Indian reservations to urban markets or from low-tax states in the South to high-tax states like New York and Connecticut.

Last year, the Albany Times Union obtained an ATF memo that directed agents to downgrade tobacco-diversion investigations unless there is a “nexus” to violent crime.

Indian Country had openly questioned the ATF's written position regarding state enforcement of the PACT Act per the withdrawn or "taken down" FAQs, specifically:

1. The scope of “lawfully operating” as that term is used in 15 U.S.C. § 375(4)((B);
2. The scope of “Delivery sales” in regard to wholesale shipments made to reservation retailers intended for resale in a “face to face” transaction;
3. The PACT Act “list;” and
4. The PACT Act definition of “interstate commerce” and its relationship with commerce occurring between different Indian reservations.

Of particular concern was Issue No. 1, as ATF took the position in the FAQs that to be “lawfully operating,” a business must possess all state licenses regardless of whether that business is operating in Indian Country. The ATF's position, which represented a wholesale incorporation of state law into Indian Country, is specifically prohibited by the plain language of Section 5 of the PACT Act.

Still, Indian Country should not let its guard down against the states for an upstate New York minute.

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.

State of Flux: Washington Supreme Court and Indian Rights

Washington Supreme Court Justice and longtime Indian fighter James M. Johnson announced his retirement from the high court last week.  For Indian law court watchers, Justice Johnson’s departure adds more excitement to an already dynamic time for the Court in terms of Indian jurisprudence. The recent voting record of the still-seated Washington State Supreme Court Justices in Indian cases, reveals some patterns for the justices:

Case	Pro-Tribal Interests	Anti-Tribal Interests
Wright (tribal corporate sovereign immunity)	Madsen, Owens, Fairhurst	C. Johnson, J. Johnson
Eriksen (tribal detention of traffic offender in fresh pursuit, off reservation)	Owens, C. Johnson	Stephens, Wiggins, Fairhurst, Madsen, J. Johnson
Jim (tribal jurisdiction over Treaty in lieu sites)	Owens, C. Johnson, Fairhurst, Stephens	J. Johnson, Madsen, Wiggins
AUTO (tribal indispensability to third-party fuel compact challenges)	Madsen, Owens, Fairhurst, González	C. Johnson, J. Johnson, Stephens, Wiggins
Clark (state search warrant execution in Washington Indian Country)		Unanimous (Fairhurst Opinion)

  Wright, AUTO and Jim best illustrate the very narrow split on the court when it comes to tribal sovereignty rights, with the Court’s most firmly conservative and anti-tribal (or as my colleague writes, “regressive”) position, prevailing in three out of the last four Indian cases.

While cases are not decided based on whether there is a tribal litigant on one side, appellate court judges do seem to develop voting patterns where Tribes are involved.  As you can see, Justice James Johnson has not surprisingly consistently ruled against tribal interests. Justice Wiggins seems squarely anti-tribal too.

Whoever Governor Inslee appoints to replace Justice James Johnson in May, who would then be up for election in November, stands to flip or maintain the Court’s recent anti-tribal position. In addition, Justices Charles Johnson, Fairhurst, and Stephens are up for reelection this year.

Justice Fairhurst has generally sided with pro-tribal majorities with the exception of criminal jurisdiction cases.  Her predisposition against tribal criminal authority was perhaps most clear during oral argument in Clark, when she expressed concerns in connection with Indian Country could serve as“an asylum for fugitives from justice.”  That is consistent with her positions in the Eriksen saga, which seem based mostly on a nuanced read of criminal procedure.

Justice Fairhurst’s reasoned dissent in AUTO was correct in observing, “[u]nder a proper CR 19(b) analysis, the Indian tribes are indispensable parties and they will be severely prejudiced by a state court judgment rendered in their absence. Because the majority incorrectly holds that the tribes are not indispensable parties, it seriously undermines the doctrine of sovereign immunity and weakens the law.”  So whatever opposition to tribal interests Justice Fairhurst showed in Clark and Eriksen are tempered by her dissent in AUTO.

Justice Stephens sided with the anti-tribal bloc in Eriksen and AUTO, which she authored.  As a former plaintiffs lawyer, her decision in AUTO appears to stem from an interest in advancing litigants’ right to sue.  She did after all side with tribal interests in Jim, which recognized tribal jurisdiction over tribal treaty fishing sites.

Justice Charles Johnson has twice voted pro-tribal, in Eriksen and Jim. He came down against tribal interests when he dissented in Wright – sort of.  While it may have been concerning at the time, he simply found to many factual discrepancies to hold that the tribal corporations at issue constituted “tribal entities.”

All of this recent Indian history in Washington’s high court goes to show that the four seats in play this year, most notably Justice James Johnson’s, are crucial to the protection of tribal sovereignty interests in Washington State.

Next Justice Elections

2014 Charles W. Johnson, Justice

2014 Mary E. Fairhurst, Justice

2014* James M. Johnson, Justice (position through 2016)

2014 Debra L. Stephens, Justice

2016 Barbara A. Madsen, Chief Justice

2016 Charles K. Wiggins, Justice

2018 Susan Owens, Justice                      

2018 Steven C. González, Justice

2018 Sheryl Gordon McCloud, Justice

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.

Finishing What Slade Gorton Started: A Practical Argument Against Disenrollment

For an Indian law attorney, few insults cut as deeply as a comparison to former Senator Slade Gorton. For decades the Washington State Republican lawmaker attacked Tribal sovereignty, at one point introducing legislation that would authorize civil actions against tribes in Federal and state courts.  

So when such a comparison was recently made — i.e. that anti-disenrollment litigation essentially picks up where Gorton left off — I was impressed by its naiveté. The opposite is true. By proceeding recklessly with mass disenrollments and standing behind sovereign immunity even as to their own citizens, a handful of tribal governments are threatening the very existence of tribal sovereignty.

It is Tribes engaged in mass disenrollment efforts that threaten to complete Gorton’s work. What Gorton failed to achieve in Congress, membership-eliminating Tribes will achieve on the ground in Indian Country. Tribes will not be able to halve and quarter their memberships and maintain their position in the federalist structure. Tribes will not be able to violate their members’ human rights while Congress, in particular, sits idly by. They will create too many enemies. Critical race theorists posit that 19th Century federal policies of termination dovetail with the Tribal self-termination of the 21st Century. The argument might go that blood quantum in particular and membership ordinances in general will inherently destroy tribes — that the federal government will achieve through inter-marriage and tribal self-governance in enrollment practices what it couldn’t accomplish through Termination and the Dawes Act. Those arguments are as accurate as anything else in the sordid context of political disenrollment — TV shows included.

But practically, if we believe that disenrollment will be the camel’s nose under the tent for tribal sovereignty, the prudent approach is to make a kind of Pascal’s wager, and take the safe road. Through court battles, anti-disenrollment and human-rights activists will attack sovereign immunity. Tribal people will not lie down and let their governments tell them they are not Indian.

And while battles wage in court, enemies of tribes in federal and state office will use the chaos to attack tribal interests. Consider that often tribes use membership numbers to justify jurisdictional power or federal entitlements. If those numbers were fraudulent, don’t expect cash-strapped non-tribal governments to turn their cheeks. The incremental cost of not terminating members is insignificant compared with the abrogation of sovereign immunity or sovereignty that disenrollment will cause. So not only is there a theoretical basis for fighting disenrollment, but rationality requires us to wager that Tribes are stronger when they are either inclusive or static. A tribal government bets its very existence by disenrolling those who belong, or at least belonged under a previous administration. And because there are so many easy ways to avoid disenrollment — constitutional super-majority requirements as at Graton; statutes of limitation on disenrollment actions; moratoriums on enrollment; adoptions — it’s not a bet any government should make.

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.

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.

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.

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