New Book Includes Gabe Galanda's "The American Indian Middle Class"

A new book, "The American Middle Class: An Economic  Encyclopedia of Progress and Poverty," includes a chapter authored by Gabriel Galanda, titled "The American Indian Middle Class."

Gabe discusses the Dawes Act of 1887, the Urban Indian Relocation Program of the 1950s, federal Indian self-determination laws and policy since the 1970s, President Reagan's Commission on Indian Reservation Economies of the 1980s, and of course Indian gaming since 1988 primarily.  He concludes: "As Indian self-determination has firmly taken hold, so too has a tribal middle class."

An excerpt:

Then of course there was, and is, Indian gaming.  What began with high-stakes bingo on various reservations in the 1970s has since the passage of the federal Indian Gaming Regulatory Act in 1988[1], blossomed into a now steady $28-billion industry.[2]  Although Indian gaming has most certainly catapulted thousands of reservation Indian families out of poverty and into much higher income brackets, the new money of Indian gaming per capita distributions has created a unique, unemployed segment of the tribal middle class.  Ho-Chunk, Inc., CEO Lance Morgan has indicted those distributions as a “new form of welfare [that] is just the latest in a cycle of dependency that Indian Country has been trying to break out of for the last 100 years.”[3]  

That new money has also catalyzed the ejection of tribal members en masse through what is called tribal disenrollment, a process of terminating members’ citizenship with their tribal government. As the Ninth Circuit Court of Appeals recently took occasion to remark about what is in essence tribal self-termination: “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.”[4]  In what has been described as a disenrollment epidemic, thousands of Indians—in 17 states and from over 60 tribes—have been jettisoned in recent years, relegating some of them into the lower class, if not abject poverty, and otherwise leaving them “culturally homeless.”[5]  Disenrollment has, thus, uniquely caused socio-economic stratification within tribes.[6] 

Meanwhile, those Indians who remain tribal members and still receive gaming per capita monies may not have made the definitional “sacrifices to create a better life for themselves,”[7] but they nonetheless comprise part of the tribal middle class.

The chapter was written in 2014, before undergoing an elaborate editorial and publication process. Disenrollment has increased in the interim.  As of today, nearly 80 tribes in 18 states have engaged in disenrollment, with an estimated 9,000-10,000 Indians having been terminated.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.

[1] 25 U.S.C. 2701 et seq.

[2] Press Release, National Indian Gaming Commission, 2013 Indian Gaming Revenues Increased 0.5%  (Jul. 21, 2014), available at http://www.nigc.gov/Media/Press_Releases/2014_Press_Releases/PR-226_07-2014.aspx.

[3] Stephan Cornell et al., Per Capita Distributions of American Indian Tribal Revenues: A Preliminary Discussion of Policy Considerations 1 (Native Nations Institute for Leadership, Management, and Policy & The Harvard Project on American Indian Economic Development, Occasional Paper No. 2008-02, 2007).   

[4] Alto v. Black, 738 F.3d 1111, 1116 n.2 (2013).

[5] David E. Wilkins, Two Possible Paths Forward for Native Disenrollees and the Federal Government?, Indian County Today Media Network, June 4, 2014; Cedric Sunray, Tribes Abandon Traditional Aspects of Inclusion, Indianz.com, Oct. 20, 2014, available at http://www.indianz.com/News/2014/015388.asp; Gozia Wosniacka, Disenrollment Leaves Natives ‘Culturally Homeless,’” Associated Press, Jan. 20, 2014, available at http://bigstory.ap.org/article/disenrollment-leaves-natives-culturally-homeless.

[6] Gabriel S. Galanda, Disenrollment Causes Tribal Classism, Income Inequality, Native News Network, June 29, 2015, available at http://nativenewsonline.net/opinion/disenrollment-causes-tribal-classism-income-inequality/.

[7] John Parker, Burgeoning Bourgeoisie, The Economist, Feb. 12, 2009, available at http://www.economist.com/node/13063298.

Gabe Galanda Featured in "Tribal Councils Increasingly Expel Members"

CQ Researcher has published an in-depth look at Indian Country today, including a profile on disenrollment titled, "Tribal Councils Increasingly Expel Members," in which Gabe Galanda is featured.

Gabriel S. Galanda, a Native American attorney who is fighting the disenrollment of more than 300 members of the Nooksack Indian Tribe in northwest Washington state, attributes the trend to “power and greed” sparked by increasing economic capitalism on native lands. 

Galanda says disenrollment is a non-native concept that stems from federal policies that required tribes to determine who belonged.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.

Tribal Tide Turning Against Disenrollment in 2017

For the second time in as many months, a Northern California tribal community has reversed course and reinstated tribal members who had been disenrolled.

Late last week, the Elem Indian Colony announced that the purported disenrollment of as many as 132 tribal members, who comprise 100% of the Colony's population, was reversed.   

In February, the Robinson Rancheria reversed the 2008 disenrollment of some 60 tribal members.

Robinson was the first tribe of nearly 80 tribes that have engaged in disenrollment, to voluntarily bring everyone who was disenrolled back onto the rolls.  

The two tribes' actions, coupled with modern decisions by other tribes to constitutionally prohibit disenrollment, suggest a reversal in the deadly trend of disenrollment that has overcome Indian Country in this era of Indian gaming and economic revitalization.  

With California "the epicenter of the disenrollment crisis" over the last decade, Elem and Robinson's decisions to reverse course seem especially pivotal.

Meanwhile, in Tucson last month a first-of-its-kind conference convened, bringing together tribal leaders, academics and advocates to discuss the disenrollment epidemic and its potential cures.  

As chronicled by Indian Country Today Media Network, several Tribal Chairs openly participated in the "two-day forum discussing tribal kinship, Native Nation citizenship, and tribal disenrollment by exploring questions that relate to citizenship and community-belonging in Indian country."

That discussion by tribal leaders was historic because as Ramona Band of Cahuilla Tribal Chairman Jospeh Hamilton bravely explained in 2015:

[N]obody in tribal leader circles is willing to talk about [disenrollment]. Not at NCAI, not at NIGA, not among Southern California tribal leaders, not anywhere.

As that tribal taboo ebbs, the tide turns against disenrollment.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.

Gabe Galanda to Keynote at Irvine Re: “Blood Quantum, Identity, and Sovereignty"

This Friday, March 24, Gabe Galanda will delver the keynote address at “Blood Quantum, Identity, and Sovereignty: Contemporary Legal Battles in Indigenous Communities," a symposium presented by Native American Law Students Association (NALSA) at UC Irvine

Washington Supreme Court End-runs Tribal Sovereign Immunity

By Joe Sexton

On February 16, a split Washington State’s Supreme Court issued a ruling providing a way to circumvent tribal sovereign immunity, at least as far as claims concerning tribal land go. 

As Anthony Broadman, partner at Galanda Broadman, warned in 2011, in rem exceptions to the rule that tribes cannot be sued absent clear and unambiguous waivers of sovereign immunity have the propensity to swallow tribal sovereign immunity.  The case discussed here appears to signal that this warning was prescient.

In Lundgren v. Upper Skagit Indian Tribe, 2017 WL 635649 (Wash. 2017), the court held that sovereign immunity did not bar a quiet title action that impacted tribally owned fee land.  At first blush, the Lundgren case appears to be a run-of-the-mill boundary dispute in which adverse possession transforms a de facto recognized property boundary into a legally recognized boundary.  But this case will likely cut a wider swath as parties with land disputes of all varieties against tribal sovereigns will leverage the holding. 

In this case, the Lundgren family purchased a parcel of land and then built a boundary fence beyond the deeded boundary of their land.  According to the Lundgrens, this fence was recognized as the property boundary for sufficient time to be deemed the legal boundary under the doctrines of adverse possession or mutual recognition and acquiescence. 

In 2013, the Upper Skagit Indian Tribe acquired title to the parcel the Lundgrens had encroached upon with their boundary fence.  At the time the Tribe acquired title, it was apparently unaware of the boundary fence and its encroachment on the Tribe’s land.  During the course of a fee-to-trust transfer process concerning its parcel, the Tribe learned of the encroaching fence and notified the Lundgrens that the fence did not represent the boundary between the two parcels, and that the Tribe was asserting ownership rights over its entire deeded property.

The Lundgrens sued to quiet title in state court under that court’s in rem jurisdiction. They moved for summary judgment, asserting that “they acquired title to the disputed property by adverse possession or by mutual recognition and acquiescence long before the Tribe bought the land.”[1]  The Tribe moved to dismiss under Rules 12 and 19, arguing that the Tribe was a necessary and indispensable party.  Because the Tribe had not waived its sovereign immunity, the Tribe could not be compelled to join the litigation.  Consequently, the Tribe asserted, the Lundgrens’ lawsuit must be dismissed. 

The trial court granted summary judgment in favor of the Lundgrens and denied the Tribe’s motion to dismiss, ruling that “because [the court] had in rem jurisdiction, it could determine ownership of the land without the Tribe’s participation.”[2] 

The Supreme Court affirmed the trial court.  The five-Justice majority opinion reasoned that the trial court was not deprived of jurisdiction by a claim of sovereign immunity because in rem proceedings are distinct and not constrained by such issues rooted in personal jurisdiction.  This effectively opens the door to parties using in rem proceedings as an end run around sovereign immunity. 

The flaw in the Lundgren majority’s analysis, and the potential for litigants to exploit this flaw as a loophole to sovereign immunity, is that the decision conflates the court’s subject matter jurisdiction, with the question of whether necessary and indispensable parties have been and can be joined.  As Justice Stephens’ dissent observes, the majority opinion uses in rem jurisdiction to essentially ignore sovereign immunity and dispense with questions of which parties are required for a full and just adjudication:

The court’s authority to exercise in rem jurisdiction does not obviate the need to determine which parties must be joined to fully and justly adjudicate the action. Which parties are necessary and indispensable is a separate question from the court’s jurisdiction—one I find dispositive in this case given the Tribe’s sovereign immunity.[3]

Although the Lundgrens’ claim of adverse possession may have merit on its own, the question of sovereign immunity is separate.  It remains to be seen whether the Lundgren decision will end up nothing more than a narrow exception to the general rule barring claims impacting a tribe’s fee land where the tribe has not waived sovereign immunity.  It is likely, however, that parties with land disputes impacting tribally owned fee land now see a way to get around sovereign immunity via in rem jurisdiction, and will seek to expand the Lundgren holding against tribal interests.

[1] Lundgren v. Upper Skagit Indian Tribe, 2017 WL 635649, *1 (Wash. 2017).

[2] Id. at *2.

[3] Id.  at *8.

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.

Gabe Galanda Honored With Professional Achievement Award By Alma Mater

Gabe Galanda's alma mater, the University of Arizona College of Law, has honored him with the Professional Achievement Award.

KIRO Radio Interview: "Attorney Gabriel Galanda - Stopping Tribal Disenrollment"

Last Friday KIRO Radio's Dave Ross interviewed Gabe Galanda regarding "the deeply troubling phenomenon of tribal disenrollment...delving into the root causes, social ramifications for those disenrolled, and the implications for tribal sovereignty under the Trump administration."

Listen to the interview here.

Indian Lawyers: #StopDisenrollment

On Wednesday, February 8, Indian lawyers from across the country strike the pose to express: #StopDisenrollment. The stand they took is consistent with the National Native American Bar Association's Ethics Opinion, that lawyers engaged in disenrollment process void of due process or legal remedy, are behaving unethical. These developments suggest a self-correction regarding the "alarming trend of tribal lawyer-catalyzed disenrollment efforts."

Gorsuch’s Colorful Ute Tribe Decisions Offer Glimpse of Indian Law Chops

Judge Neil Gorsuch’s decisions in the Tenth Circuit’s series of cases involving the Ute Tribe offer a glimpse of how Indian law will fare before the Court -- assuming Judge Gorsuch joins it. 

Judge Gorsuch’s decision in Ute Tribe v. Myton (10th Cir. 2016) is must reading for anyone who appreciates judges who use narrative in their opinions.  Long before he was a blip on the Trump nominee list, Judge Gorsuch used of the myth of Sisyphus to kick off his description of the Ute epic.  

And before that, in Ute Tribe v. Utah (10th Cir. 2015), Judge Gorsuch used similarly bright language and narrative structure in a more substantive pro-Tribal sovereignty decision, reminding Utah and several of its counties of previous decisions on tribal sovereignty.  Judge Gorsuch wrote:

For a legal system to meet this promise, of course, both sides must accept—or, if need be, they must be made to respect—the judgments it generates. Most people know and readily assent to all this. So it's pretty surprising when a State and several of its counties need a reminder. But that's what this appeal is all about.

Much more will be written and learned about Judge Gorsuch in the coming days.  But for now, we can appreciate his writing--and familiarity with Indian law in the West. 

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.

Gabe Galanda Mentioned In New York Times

Gabe Galanda was mentioned in the New York Times Magazine feature story regarding the American Indian disenrollment epidemic.  

The print story is titled, "The Disenrolled."  The online version is titled, "Who Decides Who Counts As Native American?"  The story features Galanda Broadman client, the Nooksack 306.

Gabe has also twice been featured in the Wall Street Journal, and was also recently featured in France's Le Monde's Sunday magazine.