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.

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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?" na_calling

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.

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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 14th 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.

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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.

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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.

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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:FullSizeRender

“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.

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.

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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.

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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.