Ryan Dreveskracht to Advocate for "Finding a Cure for Tribal Disenrollment"

Ryan Dreveskracht will advocate for "Finding a Cure for Tribal Disenrollment," at the 27th Annual WSBA Indian Law Seminar in Seattle on June 11.  Ryan will speak from the Arizona Law Review article that he recently published with Gabe Galanda.

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, Dreveskracht's Disenrollment Scholarship Dubbed "A Must Read For All Of Indian Country"

Tucson, AZ (May 11, 2015) - The editors of Arizona Law Review are pleased to announce the publication of Issue 57:1 which features the article "Curing the Tribal Disenrollment Epidemic: In Search of a Remedy" by Gabriel S. Galanda and Ryan D. Dreveskracht.

The article provides a comprehensive analysis of tribal membership, and the divestment thereof— commonly known as “disenrollment.” Chiefly caused by the proliferation of Indian gaming revenue distributions to tribal members over the last 25 years, the rate of tribal disenrollment has spiked to epidemic proportions and is without a remedy.

The article, using historic and contemporary case studies, details the federal government’s role in promoting disenrollment and describes how disenrollment operates in ways that are antithetical to tribal sovereignty and self- determination. In concludes with potential solutions to cure the tribal disenrollment epidemic.

“This article is the most important, and most thoroughly researched and argued treatment of the tribal disenrollment available in literature,” says Professor Robert A. Williams, Jr., Co-Chair of the Indigenous Peoples Law and Policy Program at the University of Arizona. He adds, “It is a must read for all of Indian country.”

Galanda is a 2000 graduate of the University of Arizona James E. Rogers College of Law, and is an enrolled member of the Round Valley Indian Tribes. He is a founding partner of the law firm Galanda Broadman, PLLC, in Seattle; his firm represents tribal governments, businesses and members in all varieties of dispute resolution and business matters.

Galanda's practice focuses on complex, multi-party litigation and crisis management, representing tribal governments and businesses. As an emerging leader in the legal profession, he was named to the Puget Sound Business Journal’s “40 Under 40” and the National Center for American Indian Enterprise Development’s “Native American 40 Under 40” lists.

Galanda also serves on the Native Nations Institute for Leadership, Management and Policy’s International Advisory Council. Galanda recently served as the Indigenous Peoples Law and Policy Program Distinguished Practitioner in Residence, lecturing on issues such as disenrollment and working with students.

Co-author Ryan D. Dreveskracht is a 2009 graduate of the University of Arizona James E. Rogers College of Law. At Galanda Broadman, PLLC, his practice focuses on representing businesses and tribal governments in public affairs, gaming, taxation, and energy development.

Dreveskracht writes prolifically about matters critical to Indian country, and has published in numerous peer-reviewed journals and law reviews. In 2013, he was named a “Rising Star” by the Super Lawyers rating service and Seattle Met Magazine.

Arizona Law Review is a student-edited journal that publishes four issues annually. "Curing the Tribal Disenrollment Epidemic: In Search of a Remedy" and archival issues can be viewed at www.arizonalawreview.org.

Gabe Galanda, Amber Penn-Roco Publish Article Decrying State v. Shale

Gabe Galanda and Amber-Penn Roco have published an article in the May edition of King County's Bar Bulletin--themed "Moving"--regarding the Washington State Supreme Court's recent decision in State v. Shale.

The piece is titled "State v Shale - Supreme Court Moves Washington in the Wrong Tribal Direction." An excerpt:

Congress understands that tribes want to eradicate sex offenders, wife beaters and other criminals from their homelands, and the U.S. Supreme Court has affirmed tribal jurisdiction to do so. More importantly, the Washington State Legislature and Governor share that understanding, or they would not have trusted tribes, like the Yakama Nation, to reassume authority over their lands upon the State’s retrocession therefrom. . . .

To be sure, deterring crime throughout Washington State, and empowering tribal justice systems, are not mutually exclusive state policies. In fact, the 29 tribal sovereigns in our State aspire to exactly both of those goals.

In all, it is now time for the Washington State Supreme Court to move in a common direction with other lawmakers and sovereigns in our State—towards the restoration of tribal criminal authority over bad actors on Indian lands.

Gabriel S. Galanda and Amber Penn-Roco practice Indian law with Galanda Broadman, PLLC, in Seattle. Gabe is an enrolled citizen of the Round Valley Indian Tribes, and Amber is an enrolled member of the Confederated Tribes of the Chehalis Reservation.

Ryan Dreveskracht Publishes Law Review Article Assailing the MSA

Ryan Dreveskracht has published, "Forfeiting Federalism: The Faustian Pact With Big Tobacco," in the Richmond Journal of Law and The Public Interest, which assails the Master Settlement Agreement (MSA) between the states and Big Tobacco as bad for both state business and tribal sovereignty. Only Big Tobacco has won.

In sum, it appears that state attorneys generals’ encroachment upon state legislatures’ policy-making, effectively binding each state into a deal with the major tobacco companies, resulted in a benefit only to “Big Tobacco” companies and not the states. In addition, tribal governments have suffered the brunt of the abuse in that states and the federal government have effectively been forced to attack tribal sovereignty at the behest of these major tobacco companies. In the modern era of states’ rights, from a purely legal perspective “it is simple enough for many states and local governments — as well most federalism commentators — to ignore Indian nations.”

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.

Ryan Dreveskracht to Discuss Tribal Banishment on Native American Calling

Ryan Dreveskracht will appear on Native American Calling this Tuesday at 10 AM Pacific, along with Professor Matthew Fletcher, to help ask and answer: "Banishment: Good or Bad for Tribal Communities?"

Tribal banishment can be seen as an expression of justice, restoring balance, or righting a wrong. Banishment can be permanent or temporary. It can strip a tribal member of their enrollment status and it can happen for a variety of reasons – from embezzling to murder to selling drugs. It’s a tribal tradition that remains in effect in some communities today, but how effective is it and what are the downsides? Is banishment a form of tribal justice? Or the appropriation of a tradition for modern, possibly less-honorable, needs?

In a forthcoming Arizona Law Review article, tentatively titled, “Curing the Tribal Disenrollment Epidemic: In Search of a Remedy,” Ryan and Gabe Galanda address banishment, as distinct from disenrollment and other modern tribal exclusionary practices.  An excerpt:

Similar to the citizenship rules implemented by the United States and most other countries today, the right of belonging or kinship has historically been permanent and could not be lost involuntarily.  Quite simply, in traditional American indigenous society the casting out of one’s own relatives did not occur.

The exception to this rule was “banishment,” a punitive sentence under which an indigenous person was sent out of his or her community, and forced to live away from the community for a prescribed period of time. In most American indigenous societies, individuals were held accountable for their transgressions by being forced to restore stability and harmony within the family and tribal community by compensation and seeking forgiveness.  An individual’s delinquent behavior was thus of concern to both his or her own family, as well as the local community. An individual’s kin would impose an initial reprimand; the community could impose further sanctions, and might also admonish the kin if the original discipline was not appropriate. Banishment of the individual was only considered as a last resort, if familial and community penal efforts failed, and reserved for serious crimes, such as murder or incest.  In order to effect banishment as a punishment, a consensus of the community was generally required; such consensus was most often established through the presentation of oral testimony about an individual’s character and wrongdoing to a tribal governing body, if not the entire community.  Yet given indigenous notions of belonging, even a banished person was typically allowed to return to the community conditionally after serving his or her time away.

In short, unlike banishment, disenrollment is not a traditional practice of American indigenous peoples. While banishment has a natural place in tribal society, disenrollment simply does not.

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. 

Disenrollment Drains Tribal Human Capital from Reservation Economies

Leading tribal political scientists and economists make clear that human capital is an oft-missing but critical component of any successful tribal nation building or economic development effort.  According to Drs. Cornell and Kalt:

Human capital: the skills, knowledge, and expertise of the labor force. These are acquired largely through education or work experience. As human capital rises, so do the chances of successful development.

They and other leading minds from the Harvard Project on American Indian Economic Development refer to physical, human and environmental capital, together, as what are fundamentally needed to build and sustain any successful tribal economy---in other words, money, skilled tribal people, and land.

What makes that convergence of capital difficult for tribes to obtain and leverage is the debilitating "brain drain" facing Indian Country.  As Drs. Cornell and Kalt also observe:

There’s a brain drain as a lot of the people with good ideas—particularly younger tribal members—leave home for somewhere else, desperate to support their families and discouraged by political favoritism, bureaucratic hassles, and the inability of tribal government to deal with the basic problems.

Patterns of failure, mismanagement, and corruption encourage outside perceptions of Indian incompetence and reservation chaos that make it even harder to defend tribal sovereignty. The ultimate economic result is continued poverty.

So if the not-so-good parts of tribalism perennially cause a brain drain, disenrollment---per se tribal failure, mismanagement, and corruption--- causes a brain gush; imagine a levee breaking.  The result is not just poverty; it is tribal economic ruin.

Consider the Nooksack Tribal Council, which has fired dozens upon dozens of members from tribal governmental and enterprise jobs without cause, amidst their relentless efforts to disenroll 306 tribal members since 2012.

They've nuked the River Casino's general manager, on-duty manager, HR manager, food and beverage manager, as well as the Tribe's Finance Director and senior accounting staff, Medical Clinic Director, Assistant Education Director, TANF Manager, Social Services and Housing caseworkers, Maintenance Director, Landscaping Supervisor---even the Tribal language teacher.  The list of fired Nooksacks is horrifically long.

Having decimated the Tribe's labor force and drained Nooksack's human capital, the Tribe has virtually ceased to function and they are now closing the River Casino.  If the Nooksack Tribal Council ever gets their way and disenrolls the 306, they will seal the Nooksack Tribe's economic fate, relegating all of their people to continued poverty.

Perhaps they already have.

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.

ICRA, Obergefell, and Tribal Marriage Equality

Tuesday’s marathon oral argument before the Supreme Court of the United States won’t immediately impact same-sex marriage equality in Indian Country. In fact, the Court’s decision won’t even come down until this summer. But the result in Obergefell v. Hodges, the consolidated cases asking whether the Fourteenth Amendment requires states to grant or recognize gay marriage, will have significant repercussions for Tribes. As Ann Tweedy points out in her definitive overview of the topic, U.S. v. Windsor—the U.S. Supreme Court decision that struck down portions of the Defense of Marriage Act—has limited precedential effect for Tribes. But the case is still seen as persuasive among those Tribes considering or evaluating existing Tribal DOMAs.

The same will be true for Obergefell. The 14^th Amendment and the ICRA Equal Protection clause, 25 U.S.C. § 1302(a)(8), are not coequals. They are not enforced the same. They do not even mean the same thing. But if the United States Supreme Court finds that the federal Equal Protection clause prohibits marriage discrimination, ICRA Equal Protection likely does, too.

Of course these rights will take years, perhaps decades of (likely) Tribal Court litigation to enforce. But ICRA, like the very “heteronormative conception of the nuclear family that has been historically imposed on tribes by the United States government and other colonial forces” has been imposed by the United States. As the federal concept of Equal Protection evolves, the effect on Tribal Equal Protection is inarguable.

Anthony Broadman is a partner with Galanda Broadman and can be reached at Anthony@galandabroadman.com and 206.321.2672.

Hollywood's Portrayal Of Tribal Disenrollment Is Another Bad Look

Amidst the furor about Adam Sandler's racist depiction of Indians in his forthcoming movie, consider another narrative about Indian C0untry that is increasingly being told by Hollywood and its Indian actors: Disenrollment. Two examples: In the first episode of the second season of Red Road last month, Phillip Kopus (Jason Mamoa) learns he has been disenrolled from the fictional Lenape Tribe for having been convicted after a shoot-out.

In last season's House of Cards---which, like Sandler's "satire," is produced by Netflix---the following plotline unfolded:

Doug Stamper travels to a Missouri casino owned by the fictional “Ugaya” Native American tribe and run by a greedy tribal chairman that has recently disenrolled an unknown number of tribal members. Leaders of the band that was booted meet with the Assistant Secretary of Indian Affairs because they want to be federally recognized . . . which would allow them to be able to open a casino. Federally recognized tribes have government-to-government relationships with the U.S.

The Assistant Secretary of Indian Affairs was played by Gary "Litefoot" Davis, who, in his role, says something about disenrollment to the effect of: "The federal government does not get involved in internal tribal affairs."  As Fusion columnist wrote about the House of Cards episode:

While fans and critics of the show alike are getting a kick out of pointing out the incorrect minutiae within House of Cards, this Native is happy that a popular scripted series is touching upon a very real modern issue for Indian Country . . . and that they featured real Native American actors no less!

Although it is certainly refreshing that Native actors are acting a true plotline in Indian Country today, it is regrettable that our Hollywood portrayal to mainstream America relates to our self-termination.  That only fuels non-Indian belief that tribalism should end.

It is also too bad that the attention that only Hollywood can draw to issues needing social justice, isn't being brought to very real, yet noble, issues like Indian Country's modern fight against tribal teen suicide, reservation domestic violence, and Indian over-incarceration.

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.

New Washington Law Empower Tribes to Fight Prescription Drug Abuse

Today, Governor Jay Inslee signed a bill giving tribal law enforcement and prosecutors access to an important tool to fight prescription drug abuse.  The Muckleshoot Tribe spearheaded the bill's passage.

House Bill 1637 will provide tribal authorities access to Washington's Prescription Monitoring Program---or "PMP"---which tracks sales of prescription opiates and other drugs so officials can better investigate and prosecute abuse.

Previously, the Washington Department of Health denied tribal access to the PMP, insisting that state law barred tribal police and prosecutors from participating in the program.

“This law will empower tribal authorities to fight illegal prescription drug use on reservations in Washington State, where drug-induced deaths are highest among Native Americans and Alaska Natives,” said Galanda Broadman associate Jared Miller, who wrote an article about the issue last year and testified in support of the bill in the Senate Health Care Committee this session.

Jared Miller’s practice focuses on tribal court litigation and representing businesses and tribal governments in public affairs. Jared is licensed in more than a dozen tribal jurisdictions, where he litigates civil matters. He can be reached at (206) 919-5044 and jared@galandabroadman.com

Dreveskracht, Galanda Publish ABA "Tribal Court Litigation" Deskbook Chapter

The American Bar Association Business Law Section just published the 2015 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 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 fourth year co-authoring the chapter, and his second year as its lead author.