Feds Flout Bald Eagle Protection & Tribal Consultation

By Amber Penn-Roco

The American Bird Conservancy (ABC) recently filed a Complaint in the U.S. District Court for the Northern District of California against the U.S. Fish and Wildlife Service (USF&W) and the U.S. Department of the Interior, challenging a final rule that loosened protections for bald and golden eagles for the sake of wind energy developers.

The Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act prohibit the killing of bald and golden eagles without a federal permit.  In the Complaint, ABC challenged a rule that extended the total maximum duration of the federal permits, from 5 years to 30 years.  ABC alleged that the final rule violates the National Environmental Policy Act, the Bald and Golden Eagle Protection Act and the Administrative Procedure Act.  ABC alleged that the rule was “promulgated specifically to respond to the wind power industry’s desire to facilitate the expansion of wind energy projects in areas occupied by eagles.”  ABC argued that by extending the length of the permit, the rule eliminated the need for wind companies to renew permits.  The renewal applications would have required agency decision-making processes, necessitating public comment.  Therefore, ABC argued that the rule interferes with the ability of the public to participate and meaningfully advocate for eagles.

The rule has rightfully drawn opposition from Indian Country. The USF&W initially attempted to consult with Indian Country; the agency met with the National Congress of American Indians.  The meeting did not appear to be effective, as one month later the NCAI passed a resolution accusing the USF&W of failing to meaningfully consult with tribes.  The Nez Perce, San Carlos Apache, Sault Ste Marie Chippewa Indians and Hopi Tribes each submitted public comments opposing the rule, in part due to  of the lack of effective tribal consultation.

Outreach to NCAI is by no means the consultation required by federal law.  Indeed, as one federal court explains: “grouping tribes together (referring to consultation with ‘tribes’) is unhelpful: Indian tribes aren’t interchangeable, and consultation with one tribe doesn’t relieve the [Fed] of its obligation to consult with any other tribe that may be a consulting party.”  See Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dept. of Interior (S.D. Cal. 2010).  Not to mention, NCAI isn’t even a tribe.

ABC’s lawsuit will hopefully force the United States to reconsider the impacts of the rule on tribally sacred bald and golden eagle populations.  However, none of the plaintiffs in the lawsuit are tribes, and, therefore, the lawsuit may not reflect Indian interests.  Tribes may be formulating their own challenges to the final rule.  Alternatively, as the record reflects a lack of government-to-government consultation, tribes should consider using this as a basis to intervene in ABC’s action.  Unfortunately, as the final rule has been promulgated, tribes must now look to litigation to ensure that tribal interests are considered.

Amber Penn-Roco is an Associate with the Seattle office of Galanda Broadman, PLLC.  Amber’s practice focuses on complex land and environmental issues and multi-party litigation involving tribal sovereignty, torts and hazardous materials.  She is an enrolled Chehalis Tribal Member.

Tribal Police: “We Don’t Need No Stinkin’ State Badges!”

By Joe Sexton

Recently, in State of New Mexico v. Sanchez, the New Mexico State Court of Appeals upheld the DUI conviction of a non-tribal defendant arrested by a tribal police officer on Indian lands in New Mexico. The defendant, on appeal, had challenged the authority of the tribal police officer to arrest him.  At first blush, this seems to be a win for Indian Country and tribal sovereignty in general.  Of course the end result is better than a ruling further eroding the minimal authority Tribal police presently retain in Indian Country after a disastrous line of federal court decisions, including the Supreme Court’s disastrous holding in Oliphant v. Suquamish Indian Tribe roughly 36 years ago.

But if you dig into the New Mexico court’s decision enough to understand the reasoning underpinning its holding, the illusory nature of tribes’ sovereign power to police their own lands is revealed.  The only reason preventing the New Mexico court from finding that the tribal police officer lacked the authority to arrest an impaired driver on Indian lands is the fact that the tribal officer had been deputized by the non-tribal county government.  In other words, only through the permission of non-tribal entities—many of which are often openly hostile to tribal authority and jurisdiction—is a tribal police officer allowed to arrest a non-tribal person committing a crime in Indian Country.  One line from the court of appeals’ opinion in particular reveals the hollow nature of the tribal police officer’s authority with respect to non-tribal criminal actors on Indian lands:

“The scope of Officer Vigil’s [the tribal police officer] authority depends on the authority given to him by the Santa Fe County Sheriff.”

When you combine the deep-seated racism and anti-tribal sentiment that has festered for generations in and around Indian Country and has infected non-tribal law enforcement, with the often rural nature of Indian reservations, and the court decisions crippling tribal law enforcement’s ability to protect communities situated in Indian Country, this recipe for calamity generally creates lawless havens for criminals and leads to problems of epidemic proportions.

The movement to stem violence against tribal women makes this painfully clear.  According to Lynn Rosenthal, the White House Advisor on Violence Against Women, “Native American women suffer from violent crime at some of the highest rates in the United States.”    Ms. Rosenthal notes that non-Indians constitute “more than 76 percent of the overall population living on reservations and other Indian lands” and, consequently, many of the “abusers of Native American women are non-Indian men.   Thus, “non-Indian men who batter their Indian wives and girlfriends go unpunished” because of the jurisdictional limitations of tribal courts and law enforcement.

Even though Congress recently debated an “Oliphant fix” with respect to violence against women in particular, legislation regarding this problem should not be necessary, and violence against Native American women is not the only malignancy caused by Oliphant and its progeny.  If sovereignty means anything, it means the inherent authority to protect the communities situated within a sovereign’s territory.  But this authority has been stripped away, leaving Tribal law enforcement at the mercy of local jurisdictions if they want any authority to protect their communities from non-tribal criminals.  As Justice Thurgood Marshall noted in his dissent to the Oliphant majority opinion:

"I agree with the court below that the ‘power to preserve order on the reservation . . . is a sine qua non of the sovereignty that the Suquamish originally possessed.’ . . . In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy, as a necessary aspect of their retained sovereignty, the right to try and punish all persons who commit offenses against tribal law within the reservation.”

Put another way, the authority of sovereign Indian tribes to arrest and prosecute non-Indians who decide to commit crimes on Indian lands is inherent, and absent legislation or a Treaty to the contrary, no court has the legitimate authority under our system of law to simply erase that inherent authority.  So in the end, it’s a good thing that the New Mexico Court of Appeals did not expand upon Oliphant and further hamstring tribal law enforcement operating within New Mexico.  But Officer Vigil’s authority on tribal lands does not, and should not, depend on whether Santa Fe County decides to cross-deputize him or not.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC, and practices out of Yakima, Washington.  Joe’s practice focuses on tribal sovereignty issues, including land and environmental issues, economic development matters, and complex Indian Country litigation.

Beware: "Enrollment Audit" is Code for Disenrollment Witch-hunt

We are witnessing an increasing number of tribal enrollment audits. In our and our clients' experience, these "audits" are not about sorting out the truth of a tribal community's lineage.  Instead, they are a means to an end: mass disenrollment.

Perhaps more troubling than the notion of "auditing" Indian ancestry--hardly an indigenous custom or tradition--these audits are being performed by outsiders, most notably CPAs.  In other words, highly confidential tribal historical, anthropological and genealogical information is being disclosed to third-party corporate entities.  This time-honored information is boxed and shipped off of the reservation or scanned and uploaded to the cloud--nothing is sacred.

And even more troubling than that is the idea that consulting firms, even those professed to be "Native-owned," are actively marketing themselves to tribes for the opportunity to administer these witch-hunts.  One firm advertises tribal enrollment audits as a way of "managing your tribal rolls" and "re-evaluating your organizational growth strategies." Got snake oil?

In any event, if ever you hear the word "enrollment audit," put up your political dukes and fight the measure to its death.

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 206.300.7801 or gabe@galandabroadman.com.

Reframing "The Debate Over Disenrollment"

It is with great admiration for my colleague Professor Duane Champagne that I must disagree with some of the underpinnings to his recent column, “The Debate Over Disenrollment.”  Here, I hope to help reframe that “debate." Professor Champagne suggests, like legions of others, that the 1978 Santa Clara v. Martinez bestows upon tribal governments some form of absolute power to disenroll Indians.  Most notably the U.S. Department of Interior has proclaimed, time and again, that Santa Clara requires “‘a proper respect’ for tribal sovereignty” and “‘cautions’ that [the Fed] tread lightly” in the realm of disenrollment, even in the face of related federal illegality.  Reliance on Santa Clara is outdated, and frankly, unhelpful in the face of what Professor David Wilkins rightly calls a “disenrollment epidemic.”

Although Professor Champagne is correct that federal courts generally “do not have jurisdiction over tribal membership rules,” they do have jurisdiction over various Tribal disenrollment-related actions that implicate federal law and thus raise federal questions under 28 U.S.C. 1331.  For example, the trend of faction-driven Secretarial elections that further the targeted disenrollment of Indians under the guise of the federal Indian Reorganization Act, implicates the federal judiciary’s jurisdiction.  Likewise, the trend of denying proposed disenrollees tribally and federally guaranteed equal rights, such as gaming per capita distributions, implicates the federal Indian Gaming Regulatory Act.

It is only a matter of time before federal judges, in the spirit of judicial realism, begin to tackle disenrollment on the merits.  A recent Ninth Circuit Court of Appeals panel recently commented that “membership disputes have been proliferating in recent years, largely driven by the advent of Indian gaming, the revenues from which are distributed among tribal members.”  Alto v. Black (9th Cir. 2013).  Reading between the lines: the federal courts are tired of per capita-driven mass disenrollment disputes.  The United States' judges will eventually intercede to help put a stop to those disputes' proliferation, with the judges' hook being the rampant federal civil rights violations that accompany any mass Indian disenrollment.

Professor Champagne suggests that “[o]ften Indian disenrollment debates focus on specific membership rules particular to a given tribe, such as their traditional kinship system[s].”  The reality, though, is that trending mass tribal disenrollment efforts have little to do with tribal tradition-based membership requirements.  They instead involve artificial, federal membership constructs, like U.S. censuses and rolls, which can be “traced to the United States’ paternalistic assimilation policies of the 1930s.”  As Dr. Jay Miller observes, “no census was fully effective and portions of tribes were always missing both by accident and by malicious intent of U.S. or tribal officials.”

Disenrollments rooted in such non-indigenous constructs really do not “require deep understanding of tribal community, history, culture, and identity” as the professor suggests.  In fact, disenrollment typically has little to nothing to do with such Indian ideals.  Disenrollment is “predominately about race, and money.”  Even if a particular disenrollment dispute is not driven by those non-indigenous values—I do not know of one mass disenrollment that is not—“non-Indians may view such controversies as indicators of greed and corruption.”  And of course perception is reality, especially for Indians.

Indeed, Professor Champagne’s main argument seems to be that “the whole of Indian tribal membership issues should not be brought into question because of the perceived actions of some.”  Yet as Jared Miller correctly observes, “tribal governments abandoning members en masse . . . harm their own bottom line by engendering negative media and investor perceptions. More critically, they threaten the bottom line of Indian businesses everywhere.”  Those tribes also threaten tribal self-governance, giving Indian sovereignty skeptics good reason to believe that tribal governments cannot properly handle membership without outside involvement.

In other words, the disenrollment actions of some nations do affect all tribal nations.  Among much other negativity, “there is a real risk that Congress or the U.S. Supreme Court might one day make new law in the area of tribal citizenship”—a risk that we can ill afford to take.  As such, Native America should make the whole of Indian tribal membership issues our collective business. “Too much is at stake to remain silent.”

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 206.300.7801 or gabe@galandabroadman.com.

Happy Independence Day to All of Our American Indian Clients

Gabe Galanda Honored by WSBA for Excellence in Diversity

Gabe Galanda has been honored with the Excellence in Diversity Award by the Washington State Bar Association. He will be given the award at the WSBA's annual awards dinner in downtown Seattle on September 18, 2014.

Gabe is an enrolled member of the Round Valley Indian Tribes of California. He currently sits on the National Native American Bar Association Board of Directors, and is a past President of the Northwest Indian Bar Association and past Chair of the Washington State Bar Association Indian Law Section.  

He is being primarily honored for his work associated with Huy, a non-profit that provides economic, educational, rehabilitative and religious support for American Indian, Alaska Native, Native Hawaiian and other indigenous prisoners in the Pacific Northwest and throughout the United States.

In 2012, Gabe founded Huy--pronounced "Hoyt" in the Coast Salish Indian Lushootseed language, to mean "see you again/we never say goodbye."  He serves as the Chairman of Huy's Board of Advisors, and runs the non-profit through his law office.

Huy's most notable recent activities include two amicus curiae efforts before the U.S. Supreme Court, and advocacy before the United Nations and its Human Rights Committee, on behalf of American indigenous prisoners vis-a-vis their fundamental human rights to engage in traditional tribal religious worship.

Gabe is the Managing Partner of Galanda Broadman, PLLC, an American Indian-owned law firm dedicated to advancing and defending Indian rights.  The firm has offices in Seattle, Washington and Bend, Oregon.

Nike, N7 Should Get Off the Sidelines re Redskins Mascot

Nike and its N7 Fund have done some amazing things for Native America.  Yet the biggest sports brand on the planet stands on the sidelines of the "Change the Mascot" movement. It is understandable why some of America's biggest companies--Coca Cola and FedEx to name just two --are sitting out the Redskins mascot controversy. Money.  Big Money.

But unlike those other Fortune 50 companies, Nike has specifically stated a "commitment to bring sport and all of its benefits to Native American and Aboriginal communities in the United States and Canada."  

Of course with that commitment comes business opportunity for Nike, and not merely through the N7 shoes and apparel line.  The much more lucrative play comes through the intangible economic benefits that adorn any well-advertised philanthropic venture like the N7 Fund.

It is rather hypocritical for Nike to "help Native American and Aboriginal youth recognize their proud history," yet sell sports merchandise bearing a logo historically associated with bloody Native American scalps when "in-depth studies that show the harm negative stereotypes and 'Indian' sports mascots have on Native youth."

Nike has thus far largely (but not entirely) ducked the Indian mascot controversy.  That is in part because although national tribal leaders have lambasted the likes of FedEx for not denouncing the Redskins mascot, they have looked past Nike and N7.  Native America has allowed the the world's #1 athletic apparel company to ignore its own social responsibility to denounce racism in professional sports--especially in the form of branded pro sports apparel.

Indeed, without the prominence of Nike and its ever-lasting Swoosh the Redskins mascot might just fade away.

And beyond a Nike pronouncement against the racist Redskins mascot being the proverbial "right thing to do," as sports marketing professionals point out, a new Washington NFL team logo "would be a boon for the National Football League and licensees such as Nike Inc., if previous pro-sports team switches are any indication."

It is time for Nike to walk the walk.  They certainly have the shoes in which to do so.

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 206.300.7801 or gabe@galandabroadman.com.

Department of Justice Proposes an Indian Country-Specific Legislative Fix to Shelby County v. Holder

Last year in Shelby County v. Holder the Supreme Court struck down Section 4(b) of the Voting Rights Act (“VRA”), holding that “[o]ur country has changed” so that Section 5’s preclearance formula no longer “speaks to current conditions.”

In essence, Section 5 of the VRA allowed federal administration enforcement of the voting laws, rather than judicial enforcement, by forbidding certain states and local governments from implementing “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” without preclearance from the Department of Justice (“DOJ”).  “Covered jurisdictions” — jurisdictions subject to preapproval obligation of Section 5 — were determined by utilizing a formula found in Section 4(b) of the VRA.  Section 4(b) designated as “covered” those jurisdictions that (a) had maintained a “test or device” — i.e., literacy or knowledge tests, good moral character requirement, voter registration materials, etc. — as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election; (b) had a voting test or device and less than 50 percent voter registration or turnout as of 1968; or (c) had a voting test or device — including, this time, English-only voting materials in places where over five percent of voting-age citizens spoke a single language other than English — and less than 50 percent voter registration or turnout as of 1972.

As a result of this coverage formula, particularly redefinition of a “test or device” as English-only voting materials in 1975, numerous states and districts containing Indian reservations became covered.  The litigation that followed revealed not only that these jurisdictions continued to discriminate against Native American voters, but that Indian Country has not even gotten to the point of raising challenges to the complex contemporary vote dilution cases brought in significant numbers by other minorities.  Instead, Native Americans are still facing the antecedent issues regarding their inability to elect any representatives at all.  The Blackmoon v. Charles Mix County, No. 05-4017 (D.S.D.), litigation, for instance, revealed that under the County’s proposed voting plan there was “no reasonable probability that Native American voters could elect their candidate of choice” and that Native Americans were outright “discriminated against in registration and other parts of the voting process.”  Similar suits and proposed legislation submitted to the DOJ for preclearance revealed similar deficiencies.

Thus, shortly after the Shelby County decision was issued, I authored a law review article arguing that while it may be the case that the coverage formula does not “speak[] to current conditions” outside of Indian Country, this is not true within.  While the Section 4(b) formula may not be constitutional under Shelby County, I argued:

Indian-specific [voting] legislation is justified, necessary, and indispensable to the protection of the Native vote.  This is particularly true considering Congress’ plenary and exclusive authority over Indian affairs, including relations between states and tribes.  Indeed, if there is any area where limitations placed upon Congress by the Fifteenth Amendment would not prevent preclearance legislation, it is in Indian Country, where Congress has an affirmative trust and fiduciary obligation to ensure that Native American voters are fully enfranchised.

On June 9, the DOJ took the first step in making this suggestion a reality by initiating formal consultation between Tribal officials and the DOJ to discuss whether the DOJ should recommend to Congress Indian-specific legislation that would address the gaps created by the Shelby County decision.  The DOJ cites as Congress's authority to enact this legislation the "plenary power to legislate in respect to Indian tribes" and "Congress's unique obligation toward Indians -- in particular, its responsibility to ensure that they are included fully within the modern body politic -- [which] gives Congress the power to require fair treatment for American Indian and Alaska native voters."

The DOJ is set to circulate a consultation schedule by July 9.  All tribes are invited to offer input on the proposed legislation.

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 and Broadman Each Receive SuperLawyers Honor

Tribal lawyers Gabe Galanda and Anthony Broadman were each honored by Super Lawyers magazine for 2014; Gabe as a Washington “Super Lawyer” and Anthony as a “Rising Star.”

The award follows several recent honors for Galanda Broadman and its founding partners.  Galanda Broadman has received a prestigious Tier 1 ranking from U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law.

Gabe has also been named to The Best Lawyers in America in the practice areas of both Gaming Law and Native American Law, in 2014 and for the prior seven consecutive years. He was recently named a “Difference Maker” by the American Bar Association, too, with Anthony having been honored for his outstanding service by the Washington State Bar Association.

Galanda Broadman, “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests.  The firm, with six lawyers and offices in Seattle, Washington and Bend, Oregon, 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 is an enrolled member of the Round Valley Indian Tribes of California. He currently sits on the National Native American Bar Association (NNABA) Board of Directors, and is a past President of the Northwest Indian Bar Association and past Chair of the Washington State Bar Association (WSBA) Indian Law Section.

Anthony  is a past Chair of the WSBA Administrative Law Section, and author of “Administrative Law in Washington Indian Country.”  He is a former Trustee of the WSBA Indian Law Section, and also serves as Editor-in-Chief of the Section’s Indian Law Newsletter.

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.