The Potentially Ruinous Tribal Financial Implications of Disenrollment

We have previously written about how disenrollment financially ruins affected tribal members.  Now consider how disenrollment can cause financial ruin to those tribes engaged in the colonialist practice. In 2013, Jared Miller wrote a foretelling piece for Indian Country Today Media Network, titled "Disenrollment is Bad for the Bottom Line":

"Disenrollment is a business matter. That’s because tribal governments abandoning members en masse will harm their own bottom line by engendering negative media and investor perceptions. More critically, they threaten the bottom line of Indian businesses everywhere. . .

Ugly battles like the one at Nooksack have potential to deeply affect tribes’ bottom lines. That’s partly because non-Indians may view such controversies as indicators of greed and corruption. Investors may also conclude that partnering with a tribal government engaged in abandoning its own citizens is not worth the risk to investment."

Now 2 1/2 years after starting a mass disenrollment campaign against the Nooksack 306, the Nooksack Tribal Council is shuttering one of its casinos---severing one of its economic lifelines, along with Tribal ancestral lines.

Perhaps that is because the Tribal Council axed various Nooksack 306 tribal members who helped manage Nooksack's gaming enterprise and keep it well into the black for the last several years; or because the Tribal Council invited an NIGC investigation into gaming revenue distributions that violate IGRA.

Or because, as reported by the Bellingham Herald, "the tribal council was too preoccupied with a controversial effort to disenroll hundreds of tribal members" to properly run the Tribe or its businesses.

"Apparently, the internal strife of expelling tribal members brought all other government affairs to an extreme slowdown."

The same financial fate has met the Picayune Rancheria of Chukchansi Indians, which "has been disenrolling members for decades" for sake of larger Indian gaming revenue per-capita distributions to remaining tribal members, and last year witnessed a federal judge shutter its lucrative casino.

Not only are both the enrolled and disenrolled Chukchansi Indians now suffering financially---the latter far more harshly than the former---but "the casino closure has significantly affected Madera County’s economy and the nearby communities."  There is no telling when Chukchansi's casino will reopen.

Indeed, disenrollment is bad for the bottom line--everyone's bottom line.  It is also karmic.

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

Disenrollment Lawyering Deemed "Immoral and Unethical"

In a historic stance against disenrollment, the National Native American Bar Association has declared:

that it is immoral and unethical for any lawyer to advocate for or contribute to the divestment or restriction of the American indigenous right of tribal citizenship, without equal protection at law or due process of law or an effective remedy for the violation of such rights.

In a paper he recently published for the Federal Bar Association's 16th Annual Indian Law Conference in Washington, DC---"Exposing Abramoff’s Playbook: Exploiting, or Filling, the Ethical Void for Tribal Lawyers"---Gabe Galanda has likewise decried disenrollment lawyering as unethical and immoral:

when lawyers advocate, cause or facilitate any disenrollment proceeding that lacks a good faith basis in law and fact, they are violating ethical rules or norms—and acting immorally. That is especially the case when they carry out the termination of enrolled Indians who decry Tribal Council factionalism.

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

We're 5! Thanks for Your Support

Galanda Broadman Profiled by Law360 as "Nimble Boutique"

As Galanda Broadman celebrates our 5th-year anniversary today, we are honored to have been featured by Law360 as a "go to" tribal boutique law firm nationally.

Handling the array of everyday legal matters for tribes and for the growing cadre of business-minded members are the relatively small but nimble boutiques like . . . Galanda Broadman PLLC . . .

Gabe Galanda, a name partner of the growing, 5-year-old Galanda Broadman, said boutiques like his can more nimbly adapt to price pressures given that there is less overhead to shoulder.

"We see ourselves as filling niches that big firms cannot fill. We increasingly represent tribal individuals . . .," Galanda said, adding that the firm can also often represent tribe members without running into the conflicts — with, say, a developer or energy company — that a larger law firm might hit upon. . . .

Galanda added that his boutique has regularly worked with larger law firms.

"We certainly collaborate with a lot of firms that would be styled as competitors. We have hired them, and we have been hired by them," Galanda said.

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.  

Gabe Galanda: Paskenta Civil RICO Suit "A Proxy for Disenrollment"

Law360 quotes Gabe Galanda regarding a civil RICO lawsuit filed in California federal district court by a Paksenta Tribal Council faction against a family of ousted Tribal leaders.

Gabriel S. Galanda of Galanda Broadman PLLC says that the recent complaint essentially brings a battle over tribal membership, which affects who profits from tribal revenues, under the cover of a RICO suit.

‘‘That lawsuit is designed to cause the disenrollment of the defendants,” Galanda said. “In my estimation, it is not designed to expose mob-style racketeering or claw back so-called ill-gotten gains; it’s a proxy for disenrollment.”

The court may be leery of the suit, as federal courts have shown an unwillingness to get involved in tribal disenrollment conflicts, Galanda said.

The 171-page lawsuit (hardly the short and plain statement of grounds mandated by Rule 8(a)(2)) is riddled with allegations of "internal" or "intramural" tribal matters, in which courts---especially U.S. District Courts---are loath to involve themselves.  Dismissal motion practice is sure to come.

More broadly, a Tribal faction's initiation of dubious civil RICO litigation against their adversaries, is yet another new lawyer-designed play for Abramoff's Playbook.

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

Federal Court Rules No Tribal Exhaustion Required For ERISA Claim Against Casino

By Joe Sexton

A Kansas federal court’s decision further limiting the jurisdiction of tribal courts in the employment realm, is a decision that tribal governments operating commercial enterprises in Indian Country must read.

The federal district court held that there is no tribal court jurisdiction over a tribal casino employee’s ERISA claim based on the health care insurance benefits the tribe offered to casino employees.

The Sac & Fox Tribe had argued that the casino employee had failed to exhaust tribal court remedies before filing suit. The court specifically ruled that in enacting ERISA, Congress preempted tribal court authority when it extended concurrent jurisdiction over ERISA claims to both state and federal courts, yet did not extend that concurrent jurisdiction to tribal courts.

Rather predictably, among other case law on statutory pre-emption noted in the decision, the court relied heavily on the infamous Supreme Court decisions in Montana v. U.S. and Nevada v. Hicks.

As the court explained, tribes offering their government employees health care insurance benefits under “governmental plans” are exempted from regulation under ERISA. But the exception for “governmental plans” afforded under ERISA does not extend to employees performing commercial activities for tribal entities, like casino employees or the employees of any other tribally owned “commercial” enterprise.

Therefore, tribal governments may be held liable for claims brought under ERISA by employees working for tribal casinos or some other tribal government program that is not exempted under ERISA.

Yet, without the tribal court having a say as to those claims.

This ruling from Kansas limiting tribal court authority is likely a bellwether of how other federal courts will come down on ERISA claims in Indian Country.  Tribes should take heed.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and joe@galandbroadman.com.

Wash. St. Supremes Further Tangle the PL 280 Web in State v. Shale

By Anthony Broadman

The Washington State Supreme Court wove new threads into the already tangled web of Washington partial P.L. 280 jurisprudence today.

The practical result of Washington v. Shale was predictable: Washington has criminal jurisdiction over an Indian who commits a crime on the reservation trust land of a Tribe other than his own. The Court observed that such jurisdiction was probably concurrent with the Tribe’s jurisdiction (under Lara).

After a lengthy exposition of Washington’s version of P.L. 280, retrocession, and criminal jurisdiction over tribal members, the Court held that on the Quinault reservation, the federal government has accepted retrocession of state jurisdiction over members of the Quinault Indian Nation. Because the defendant was not Quinault, jurisdiction over him had not been retroceded.  So the state possessed jurisdiction over him under P.L. 280.

But at least two aspects of the decision are concerning.

First, the case deals directly with the Quinault Nation’s jurisdiction over Indians on its reservation trust lands, and the tribe appears to have watched idly while a state court unilaterally limited Quinault authority. Prudentially speaking, the tribe might have wanted state jurisdiction over this particular crime: failing to register as a sex offender. But if it did, it might have entered into an extradition arrangement, asserted its sovereignty and expressly allowed the arrest and prosecution, or participated in the case and helped to fashion a remedy that did not put tribal jurisdiction in the sole hands of a state court.

Second, the Court delved into a Bracker approach, which is probably inappropriate on these facts. It is not clear whether Bracker can ever apply in a criminal context (it is difficult to see how it would since Tribes rarely possess criminal jurisdiction over non-Indians). And it never applies to Indians in Indian Country. Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 99 (2005). Presumably had the Quinault Nation participated in the case, even as a friend of the Court, this confusion might have been avoided.

In all, unless overturned---perhaps on reconsideration as has been known to happen before the Court---Shale makes clear that Washington State has criminal jurisdiction on Quinault Reservation trust land for criminal prosecution of an Indian, if that Indian is not Quinault. Even worse, tribes with retrocessional situations similar to that of Quinault will find themselves caught in the same, more-tangled web.

More generally, Washington tribes should pay very careful attention when they or tribal members are invited to step into the parlor of today's Washington State Supreme Court.

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.

Is Tribal Grass Really Greener?

By Anthony Broadman

It is hard to think if there has ever been a furor in Indian Country like we are witnessing amidst the tribal marijuana gold rush.  Nor could there be a more dynamic tribal issue, legally speaking.

Last week, the Compassionate Access, Research Expansion and Respect States (CARERS) Act was introduced in the U.S. Senate.  Under this new legislation, the federal Controlled Substances Act would be amended so that states can set their own medical marijuana policies.

While the CARERS Act does not mention tribes, it has implications eerily similar to 18 U.S.C. 1161, which imported state liquor regulations into Indian Country. See Rice v. Rehner.  Right now, states have no civil regulatory authority over marijuana in Indian Country.  Indian Country should pay careful attention to the CARERS Act, for fear that it might be amended or construed to change that reality.

This week, officials with California Department of Fish and Wildlife and National Marine Fisheries Service published, "Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds."  The paper discusses several critical regulatory and environmental issues for tribes that are considering recreational or marijuana cultivation should carefully consider.

As a result of Proposition 215 and the subsequent Supreme Court ruling, the widespread and largely unregulated cultivation of marijuana has increased rapidly since the mid-1990s in remote forested areas throughout California . . .

In spite of state-wide prevalence, there is not yet a clear regulatory framework for the cultivation of marijuana, and from an economic viewpoint there is little distinction between plants grown for the black market and those grown for legitimate medical use . . .

The broad array of impacts from marijuana cultivation on aquatic and terrestrial wildlife in California has only recently been documented by law enforcement, wildlife agencies, and researchers. These impacts include loss and fragmentation of sensitive habitats via illegal land clearing and logging; grading and burying of streams; delivery of sediment, nutrients, petroleum products, and pesticides into streams; surface water diversions for irrigation resulting in reduced flows and completely dewatered streams; and mortality of terrestrial wildlife by rodenticide ingestion.

Indeed, unless great precaution is taken by Indian Country at all levels of this conversation, and robust regulation is carried out by tribes in the marijuana space, the grass may not be greener.

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.

Disenrollment Could Happen to You Too. Really.

Do you have a county birth certificate for your great grandmother from the late 1800s? Were your ancestors listed on federal Dawes rolls then or Indian Censuses by the mid-1900s?

Do you have records from Christian missionaries about your ancestors' whereabouts then?

Beyond than a family tree or enrollment certificate, what "evidence" do you currently possess to prove that you are properly enrolled by tribe?

Otherwise, how do you really know that you belong?

These are the inherently biased questions today's disenrollees are facing, in defense of their very existence.

That despite the fact that county vital records from the late 1800s are almost non-existent for Indian women; that federal Indian rolls are inherently incomplete (Angelique A. EagleWoman & Wambdi A. Wastewin, Tribal Values of Taxation Within the Tribalist Economic Theory, 18 Kan.J.L. & Pub. Pol’y, 1, 7 (2008)); that Christian missionary records are antithetical to tribal longevity; and above all, that we primarily know we are tribal as a matter kinship and oral teachings, not some colonialist document.

Unless you stand prepared to immediately produce written evidence of your belonging, you could be next in line for the disenrollment guillotine.  In fact, disenrollment is not about even the best evidence, let alone the truth, of one's ancestry or genealogy or a tribal peoples' anthropology.

Disenrollment is a means to a certain end---the termination of those who are subject to its "process."

For me, I know I belong in Covelo because my grandma told me I was Nomlaki and Concow, my family was able to complete a family tree for me going back to my great grandma, and my tribe affirms that my she was an original allottee of the Round Valley Reservation. But I do not have any colonialist record of my great grandma's birth in the late 1800s or of her original allotment of land in Covelo.  I hope I am not next.

Today's tribal leaders--the most revered living members of our communities--should hope they are not next either. Consider this haunting "facebook" of former tribal leader-disenrollees.

Tribal leaders, including founding Indian fathers and mothers, are even being disenrolled, posthumously. Even the descendants of Indian Treaty signers are being disenrolled.  So much for honoring our ancestors.

Indian leaders are always subject to ouster for making wrong or unpopular decisions.  That's just tribal democracy, at least theoretically. But tragically, they are also increasingly subject to disenrollment when or if the tribal political tide turns against them.

Disenrolling immediate past-leaders has proven to be an effective way for new leaders to stave off any future election challenge from those past leaders, and to stay in power indefinitely.

On the flipside, disenrollment can come back to haunt those who disenroll. Dictators who disenroll their kin worry that what's good for the goose could, sooner or later, be good for the gander. At least that's what worried the Dry Creek Rancheria Tribal Council, who after terminating 75 of their relatives last year, passed a 10-year disenrollment moratorium to prevent their own disenrollment.

Those of our tribal leaders who make good-hearted decisions---disenrollment not being one of them---should not have to govern while worried about being disenrolled for making a wrong or unpopular choice. And nobody should have to live with even the most remote worry of being terminated by their own people.

My point: Every single one of us could be next.  That is, unless or until we, standing on the shoulders of our tribal leader giants, find a cure to the disenrollment epidemic.

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

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.