Honoring An Indian's Right to Counsel

Nooksack Tribal Court

The U.S. Supreme Court's ruling in U.S. v. Bryant and chicanery at places like Nooksack have cast a bright light on an Indian's right to counsel---both criminal and civil---in Indian Country.

As the Nooksack Court of Appeals has proclaimed, an Indian's "right to representation is crucial." Roberts v. Kelly, 12 NICS App. 33 (Nooksack Ct. App. 2014). Indeed, as the U.S. Supreme Court explains, "the right to be heard, in many cases, would be to little avail if it did not comprehend the right to be heard by counsel."  Id. (quoting Goldberg v. Kelly, 397 U.S. 254, 270 (1970)).

Still, as we see in Bryant, there is no guaranteed right to criminal counsel in Tribal Courts.  That right may eventually attach throughout Indian Country via federal laws like the TLOA and VAWA Reauthorization Act, but there is no such 6th Amendment-like right to counsel in Tribal Courts.

Bryant has been rightly criticized by tribal legal scholars insofar as uncounseled convictions obtained in tribal courts can be used to "single out Indians for conviction and imprisonment"--not to mention unduly long sentences--in federal court.  They "mourn" for Indians "the tragic loss of the most basic constitutional protection against unjust prosecution by the federal government."

That end result of Bryant should be unacceptable to tribes.  Tribes can be both tough on reservation crime, especially DV, while protecting an Indian from unjust prosecution or excessive imprisonment. Those two values-based tribal correctional goals are not mutually exclusive.

On the civil side, many tribal codes assure tribal court litigants the right to counsel of their choosing and at their own expense. More generally, no government should, as a matter of due process, deny civil litigants that right.  Turner v. Rogers, 131 S.Ct. 2507, 2518 (2011).

Unfortunately, the ploy du jour of "tribal" attorneys in intra-tribal disputes is to cause the denial of an Indian or Indian cohort's right to civil counsel. Whether through capricious tribal business licensure enforcement, civil suits, or disbarment or banishment actions against opposing counsel, the desired outcome is the same: deprivation of the right to Indian civil representation.

This result should also be unacceptable to tribes---all tribes. That is because such gamesmanship, and resulting Indian civil and human rights violations, jeopardizes the sovereignty of all tribes.

For the last 35 years, the U.S. Supreme Court has consistently expressed great skepticism about the integrity of Tribal Courts. Bryant, which was decided narrowly on ICRA grounds, did little to change that reality; consider the even more recent 4-4 split in Dollar General.

Until tribal governments guarantee and honor an individual's right to counsel---both criminal and civil---tribal courts will be viewed and treated as second-class courts. Let's counsel for counsel.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with office in Seattle and Yakima, Washington and Bend, Oregon.  Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.

National Historic Trauma Conference Featured "Citizenship, Disenrollment and Trauma"

Deron Marquez, Ph.D., former Chairman of the San Manuel Band of Mission Indians, delivered the keynote address at a powerful inter-tribal conference, "Historic Trauma: Healing the Future."

The conference was held in Southern California, where disenrollment has always burned the hottest. As Ramona Band of Cahuilla Indians Chairman Joseph Hamilton explained recently:

In Southern California, where my tribe calls home, disenrollment is common, in part because of big gaming revenues and internal power struggles. It is also a symptom of the breakdown of traditional tribal power structures. Simply put, some tribal leaders listen to lawyers instead of elders.

The conference location---in the middle of So. Cal. Indian Country---was itself powerful.

The conference was hosted by the Riverside-San Bernadino-Riverside County Health, which dovetails beautifully with the recent Resolution and published studies by the Association of American Indian Physicians.

Last year, the Association disavowed disenrollment and the resulting loss of cultural identity, which "leads to grief, depression, anxiety and more serious mental health problems [for] American Indian and Alaska Native people."

The tide continues to rise against disenrollment.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with office in Seattle and Yakima, Washington and Bend, Oregon.  Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.

Unwarranted: Violating the Federal Indian Arts & Crafts Act

As you can see from this image from a 2013 Settlement Agreement with the United States, Pendleton Woolen Mills is a known tribal cultural appropriator---and federal law violator:

As I recently explained through the Indian Country Today Media Network:

Pendleton Woolen Mills, a 100% non-Indian owned company that currently markets 290 products as “Native American,” including 233 as “Native American Inspired.”  But with the exception of 15 of 120 wool blankets, Pendleton’s products appear to be non-Indian made.

Having been dinged by the Federal Government for violation of the federal Indian Arts and Crafts Act, Pendleton now advertises its non-Indian made products as "Native American Inspired." But that untruthful advertising tagline, too, violates the Act.  25 U.S.C. 305e; 25 C.F.R. 309(24)(2). 

Problematically, Pendleton does so with the blessing of our Trustee, the United States:

This is not moral or just, on multiple levels.  This is unwarranted.  Nor is it what Congress has intended since 1935.  It is time to reinvigorate the Indian Arts and Crafts Act.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with office in Seattle and Yakima, Washington and Bend, Oregon.  Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.

Gabe Galanda Quoted by Wall Street Journal Regarding Tribal Indigent Defense Counsel

Yesterday the Wall Street Journal quoted Gabe Galanda in "High Court Finds No Federal Right to Counsel in Indian Territories":

Unless the defendant is a non-Indian or is facing more than a year in jail [in keeping with the 2013 Violence Against Women Act Reauthorization and the Tribal Law and Order Act of 2010, respectively], there is no federally mandated right to counsel, but many tribes do provide counsel to indigent defendants as a matter of tribal law, said Gabriel Galanda,  Seattle attorney who practices in Indian country.

The VAWA Reauthorization expanded a tribe's ability to assert jurisdiction over non-Indians in certain circumstances, but the defendant must be provided counsel.

The Tribal Law and Order Act changed the maximum sentence a tribe may impose from one year to three years, but the expanded sentencing authority applies only when a defendant has been provided "the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution."

Joe Sexton Named "Rising Star" in American Indian Law

Tribal lawyer Joe Sexton has been honored by Super Lawyers magazine as a “Rising Star” in the field of Native American Law.  

Joe is Of Counsel with Galanda Broadman, heading up the firm's Yakima, Washington office.  His practice focuses on tribal sovereignty issues, primarily environmental justice and cultural property protection.

Joe also advocates for tribal members in disenrollment or civil rights defense. He has also successfully represented tribal members and their families in catastrophic injury cases, securing favorable settlements.

Prior to joining Galanda Broadman, Joe worked in-house for the Confederated Tribes and Bands of the Yakama Nation.  He received his Juris Doctor degree from the University of Arizona College of Law, and a U.S. Marine Corps veteran.

Galanda Broadman, “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests.  The firm, also with 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 jurisdiction, taxation, gaming, environmental justice, and civil rights.

Super Lawyers Again Honors Galanda, Broadman and Dreveskracht

Tribal lawyers Gabe Galanda, Anthony Broadman and Ryan Dreveskracht were each honored by Super Lawyers magazine for 2016; Gabe as a Washington “Super Lawyer” and Anthony and Ryan as “Rising Stars,” in the field of Native American Law.  

Chambers USA 2016 also recently recognized Gabe for excellence in the practice of Native American Law.

Among their other accomplishments, Gabe, Anthony and Ryan have tried several cases---to verdict---for Indian clients in recent years. They have tried Indian civil rights, employment and gaming cases before federal, state and tribal court judges and juries, prevailing in the majority of those trials.

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, chairing the group’s “Include Indian Law on State Bar Exams” Initiative. Gabe 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 the current Chair of the Oregon state Bar Indian Law Section, 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.

Prior to joining Galanda Broadman Ryan was a law clerk to the Honorable Kathleen Kay, in the U.S. District Court for the Western District of Louisiana. He currently serves as a Trustee of the WSBA Indian Law Section and as the Managing Editor for the National Lawyer’s Guild Review.

Galanda Broadman, “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests.  The firm, with offices in Seattle and Yakima, 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 jurisdiction, taxation, gaming, environmental justice, and civil rights.

Idle No More Co-Founder Rebukes Disenrollment---Powerfully

In an interview with Tulalip News, Idle No More Co-Founder Sylvia McAdam (Saysewahum) explains why disenrollment is antithetical to what it means to be indigenous.

The idea of disenrollment based upon blood quantum is gaining traction amongst many tribes. It’s based on a system of thought not of our own, but passed down from colonization. What are your thoughts on disenrollment?

“It’s so unfortunate because it seems we’re always in the realm of inadequacy. We’re always inadequate; its either we have too much culture or not enough culture. We’re always in that measure of inadequacy. Ultimately, we can turn to our ancestors to see we never throw away our relatives. We never throw them away, even the ones we have come to adopt. It’s against our culture and against our natural laws as Indigenous peoples. At the end of the day, if you can demonstrate and show to me where your lands and your relatives are, then doesn’t that speak for itself? Every child, every original peoples’ child is born into lands. They have an inherent right to protect and defend those lands. No human can take that away from them.

If you are disenrolling children, then you are taking away their inherent obligation and jurisdiction into the lands they are born into. No human being has that right. It’s against our laws to do that. For every Indigenous child born it’s the duty of the parents to make sure that child is connected into the land, so that when they grow up they will defend and protect their relatives who don’t have agency to defend themselves.”

Tribal (Business) License to Kill

In late February, my law firm and I were barred or disbarred from Nooksack Tribal jurisdiction relative to our defense of 306 disenrollees, for want of a Nooksack business license apparently.

What I soon realized is I had seen this lawyer trick once before. What I've since realized is this lawyer trick undermines one of Indian Country's key strategies to countervail Dollar General's impending assault against tribal court jurisdiction over non-members.

In 2013, I sat on the Quinault Tribal Court of Appeals in Pura v. Quinault Housing Authority. In that case, the non-Indian plaintiffs' lawyers---esteemed Seattle civil rights firm MacDonald, Hoague & Bayless---was disqualified for want of a tribal business license:

In affirming the dismissal of Pura's case on sovereign immunity grounds per the Quinault Constitution, we avoided ruling upon the Quinault Attorney General's chicanery.

But as our fate would have it, the former Quinault Nation AG who successfully pulled the business license trick on Pura's counsel in 2013, pulled the same trick on us at Nooksack this year. 

On February 24, 2016, amidst a three-year disenrollment battle that my firm and I have waged against a faction Nooksack tribal politicians, they, upon advice from the new Nooksack Tribal Attorney, passed some form of legislation to bar or disbar us for lack of a business license.

Two months later, we do not yet have notice of the new legislation he caused the Tribal Council faction to pass against us.  But rumor has it that he and the Tribal Council faction dusted off a 1983 Nooksack Business Ordinance---which on its face does not apply to law firms and which had never before been utilized against anybody doing business at Nooksack---in order to jettison us.  

We immediately applied for a Nooksack business license and attempted to pay the $100 fee, but were rebuffed by the Council faction, also upon the advice of the new Nooksack Tribal Attorney. We were forced to file a pro se ICRA lawsuit against the faction in Tribal Court. But he then counseled the Court Clerk ex parte and she rejected our pro se filings.

Meanwhile, the new Nooksack Tribal Attorney helped fire the Nooksack Chief Judge, misleading the faction to think that the Judge had waived Nooksack sovereign immunity.

As the Judge herself observed, "[t]hese events occurred at a critical juncture" in our disenrollment litigation against the faction. Her firing also stays our ICRA lawsuit, practically speaking.  All by design.

Now, on to Dollar General, a pending SCOTUS case in which a non-Indian-owned variety store maintains that a tribal court lacks jurisdiction to hear tort claims by a teenage tribal member who worked as an unpaid intern at the store and was sexually molested by a male manager. 

There, the Tribe argued that Dollar General consented to its civil authority when it obtained a tribal business license (and ground lease) to operate a store on the tribe's land.  Prof. Matthew Fletcher considers Dollar General's tribal business license dispositive:

Why this case is easy should have been adamantly clear when counsel for the tribe read the language of the business license in which Dollar General consented to the application of all manner of tribal laws, and agreed to abide by those laws. It doesn’t clear any clearer or express. Nor should it have to.

As Indian Country now braces for further erosion of tribal civil authority over non-members, Judge Frank Pommersheim is dispensing "advice to Tribes to broaden business licenses to include consent to tribal jurisdiction over tort claims related to the business and consent by the business’ employees."  NCAI is urging tribes to do the same, to combat Dollar General.

But tribes cannot expect federal judges to give credence to tribal business licensure as a basis for civil authority---or more generally, to tribal court integrity---if tribes and tribal lawyers wield that licensing as weaponry against opposing parties and counsel to gain an upper hand in litigation.

Tribal business licensing must serve to legitimately regulate businesses, i.e., to protect the reservation public against unsavory activity and to hold businesses accountable for their actions. It should not be used by tyrants and in-house tribal counsel to maim or kill their foes.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with offices in Seattle and Yakima, Washington and Bend, Oregon. Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation. 

The United States Moral Trust Responsibility to Indian Peoples

In this era of tribal self-annihilation and self-termination, it is no longer easy to answer fundamental questions of tribal existence, like: Who's the tribe (qua tribal council)? Who's a tribal member?

Two centuries of federal laws designed to dispossess Indians of land and terminate tribes (i.e., Treaties, Dawes Act, Burke Act, IRA, P.L. 280) have converged to greatly confuse such questions. In particular, the federally prescribed dissolution of tribal cash assets on a "pro rata" or "per capita" basis over the last 110 years (Lacey Act of 1906, IGRA) has been especially destructive to tribal governments and communities.

Federal officials remove their hands---as if to say "not it"---when such questions are posed to them by persecuted tribal members. They cite FN. 32 to Santa Clara v. Martinez, 436 U.S.C. 49, 70 (1978), or tribal self-determination as justification.  They refuse to acknowledge that as a result of federal laws that span the last two centuries, the indigenous capacity of many tribes to be self-determinative has been destroyed---by and through the United States.

The result: an increasing number of tribes---as many as 15% of all federally recognized tribes---are destroying themselves and taking the lives of their own people.

In particular, the Trustee seemingly fails to appreciate that its trust responsibility to protect and ensure the well-being of Indian people, is a moral obligation---per federal law.

And post-Cobell/Salazar and amidst trust reform, federal-tribal lawyers and politicos are so focused on federal money-mandating statutes vis-a-vis the federal Indian trust responsibility, that they, too, generally overlook the morality component.

Dating back to the Marshall Trilogy, the federal trust relationship has been deemed one of "moral responsibility."  Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

The Supreme Court explained it most profoundly in Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942): 

Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust.

The High Court has even invoked America's honor in reference to the Indian trust responsibility:  “Out of its peculiar relation to these dependent peoples sprang obligations to the fulfillment of which the national honor has been committed.”  Heckman v. United States, 224 U.S. 443, 437 (1912).

And from the United States' national honor and moral trust responsibility, arises "the duty of protection," towards both tribes and tribal members.  Id.  Indeed: 

In exercising this broad authority, past Secretaries have acknowledged that the Department's relationship with Indian tribes and individual Indian beneficiaries is guided by the trust responsibility and have expressed a paramount commitment to protect their unique rights and ensure their well-being, while respecting tribal sovereignty.” 

Secretary of the Interior, Order No. 3335, Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian Tribes and Individual Indian Beneficiaries (Aug. 20, 2014).

Morality, humanity, honor, responsibility, trust, commitment, protection, well-being. These are not "just words." They are part and parcel of federal Indian trust law.

As such, the Trustee's current "hands off" policy, which generally fails to ensure the well-being of Indians in internecine conflicts, is wrong---in fact, it's illegal and immoral.

It is "elementary trust law, after all . . . that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch.”  United States v. White Mountain Apache Tribe, 537 U.S. 465, 475 (2003).

The same holds true for the trust corpus that is the tribe/membership: the United States shall not allow it to fall into ruin on its watch. The Trustee must resume a measured, "hands on" approach, before that corpus is destroyed.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with offices in Seattle and Yakima, Washington and Bend, Oregon. Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation. This blog is based on a presentation he gave at the Federal Bar Association Indian Law Section's annual conference earlier this month in Scottsdale.

Tenth Circuit Tackles Indian Fracking Rule

 By Amber Penn-Roco

On March 26, 2015, the Bureau of Land Management (“BLM”) issued a final rule concerning hydraulic fracturing on federal and Indian lands.  The Ute Indian Tribe of the Uintah and Ouray Reservation, as well as the States of Wyoming, Colorado, North Dakota and Utah, are challenging the final rule.  Further, environmental groups, including the Sierra Club, have intervened, in defense of the final rule.  

The final rule was supposed to take effect on June 24, 2015.  However, on September 30, 2015, the U.S. District Court for the District of Wyoming issued a preliminary injunction, enjoining the BLM from enforcing the final rule.  The BLM is appealing the injunction to the Tenth Circuit Court of Appeals. 

The BLM, and the intervening environmental groups, filed a Motion to Expedite, requesting that the Tenth Circuit expedite their appeal of the injunction.  They argued that the injunction prevents the BLM from mitigating the risks to resources posed by hydraulic fracturing on federal and Indian lands, arguing that this justifies acceleration of the appeal, as hydraulic fracturing is currently occurring on 90 percent of the wells drilled on federal and Indian lands. 

 In response, the States argued that there was no exigency, as the rule has been in the works for more than five years and that BLM did not show any harm that would result from the current litigation schedule.   

Further, industry trade groups, including the Independent Petroleum Association of American and the Western Energy Alliance, filed a Motion to Dismiss for Mootness, arguing that because the District Court will soon issue a decision on the merits of the case, the BLM’s appeal of the injunction is moot.  In the alternative, the Industry Petitioners requested the court enter a stay in the appeal until the District Court issues a final decision.   

The Tenth Circuit denied both the BLM’s Motion to Expedite and the Industry Petitioners’ Motion to Dismiss for Mootness.  However, the Tenth Circuit interpreted the Industry Petitioners’ Motion for a Stay as a motion to abate the appeal pending the District Court’s ruling on a permanent injunction and stated that it will take the motion “under advisement pending further order of this court.” 

Meanwhile, the challenge to the final rule proceeds in District Court.  Last month, the Ute Tribe filed its Opening Brief, requesting that the court permanently enjoin the fracking rule, arguing that the BLM did not comply with its duty to consult tribes and that it did not have the authority to issue the regulations.  The Ute Tribe argues, “the United States and its co-respondents continue to offensively and paternalistically assert that they know what is best for the Ute Tribe and the Ute people.” 

Further, the Ute Tribe “again reiterates that it is one thing for the United States to adopt the Fracking Rule for its own lands, where it has the powers of both a government and the land owner; but it is something far different to paternalistically impose that exact same Rule against tribal lands, where the United States does not have the beneficial ownership.” 

While the importance of increased environmental regulations on fracking is debatable, any new regulations should not come at the expense of tribal sovereignty.  

Amber Penn-Roco is an attorney with Galanda Broadman, PLLC, in Seattle, Washington.  Her practice focuses on tribal sovereignty issues, including environmental issues, economic development, and complex Indian Country litigation.  Her experience also includes work on transactional matters, including entity formation, environmental compliance and permitting.  She is an enrolled member of the Chehalis Tribe.  She can be reached at (206) 713-0040 and amber@galandabroadman.com.