Bree Black Horse: Washington State Legislature Honors Decedents and Survivors

The Washington Legislature has passed and Governor Inslee is expected to sign Senate Bill 5163, which significantly amends Washington’s wrongful death and survival statutes to allow parents, siblings and non-resident parents to bring suits based on the death of adult children that were previously barred.  The amendments also expand recoverable damages.

History of Washington’s Wrongful Death And Survival Statutes

Beginning in the early twentieth century, the Washington State Legislate enacted a series of statutes that gave particular family members the ability to sue for the wrongful death of a loved one.  But these statutes specifically excluded certain groups of beneficiaries from bringing suit to recover for the death of a loved one.  For example, the parents of an adult child who was unmarried and had no children could not sue for the wrongful death of that loved one unless they were financially dependent on that adult child.  Further, even if the parents were financially dependent on the adult child, they could not bring suit if they were not United States residents.

The Legislature made the 2019 amendments in part as a result of the fallout from the tragic 2015 Ride the Ducks crash in Seattle, Washington.  There, several young people from other counties died in that crash, but their loved ones were denied standing to bring an action to recover for the loss of their loved ones because the family members were not United States residents at the time and their families did not financially depend on their deceased adult children.  This bill similarly addresses this issue as applied to immigrant workers and their families, removing limitations previously championed by companies reluctant to pay damages arising from workplace injuries.  The bill also impacts the ability of families to recover on behalf of disabled adult family members who generally lack financial dependents. 

The amendments resolve issues stemming from outdated and racist laws that viewed farmhand children as chattel valued only as an economic contributors, and passed with the intent to prohibit Chinese nationals working on railroads and in mines during the early twentieth century from recovering on behalf of deceased family members.

Experts in the legal field have explained that Washington’s former wrongful death laws make it “cheaper for a defendant to kill a plaintiff than to injure him [or her].”  This is particularly true for single adults without children who do not financially support their children or siblings.

Healthcare providers, local governments and state Republicans strongly opposed the amendments.

Amendments To Washington’s Wrongful Death And Survival Statutes

Washington’s wrongful death and survival statues include RCW 4.20.010, 4.20.020, 4.20.046, 4.20.060, and 4.24.010. 

For instance, under the general wrongful death statute, the personal representative of a loved one’s estate can bring a cause of action on behalf of specified beneficiaries for damages they suffered as a result of the decedent’s death such as monetary losses and damages resulting from the loss of the relationship with the loved one.  RCW   

There are two tiers of beneficiaries in a general wrongful death action.  The primary beneficiaries are the loved one’s spouse or domestic partner, and children.  The secondary beneficiaries are the parents and siblings, but under the previous statute, they could only recover if there are no other primary beneficiaries, they were dependent on the decedent for support, and they resided within the United States at the time of the decedent’s death.

Under a general survival action, any cause of action the loved one could have brought prior to death may be brought by the personal representative of the decedent’s estate.  The recoverable damages include pecuniary losses to the state such as loss of earnings, medical expenses, and funeral expenses.  The estate also may recover, on behalf of beneficiaries in the general wrongful death statute, damages for the pain and suffering, anxiety, and emotional distress suffered by the decedent. 

The 2019 legislation amended the general wrongful death and survival statues to change the beneficiaries entitled to recover as well as the damages available under these actions. 

With regard to beneficiaries, the bill removed the dependency and residency requirements for secondary beneficiaries—parents and siblings—under the wrongful death statute, RCW 4.  Now, a parent or sibling may be a beneficiary of the action if there is no spouse, domestic partner, or child, without having to show dependence on the deceased loved one and regardless of whether the parent or sibling resided in the United States at the time of the loved one’s death. 

On damages, the bill specified that both economic and non-economic damages are recoverable against the person or entity causing the death under the general wrongful death statute in such amounts the jury determines to be just under the circumstances of the case.    

The bill also removed the dependency and residency requirements for secondary beneficiaries—siblings and parents.

The legislature estimated that the bill would result in a twenty percent increase in claims, which would be about fifteen to eighteen cases per year.

The bill now awaits Governor Jay Inslee’s signature.

Bree is an associate in the Seattle office of Galanda Broadman and an enrolled member of the Seminole Nation of Oklahoma.  Her practice focuses on defending individuals’ civil rights in federal, state and tribal courts. She can be reached at (206) 735-0448 or bree@galandabroadman.com.

Indian Treaty Rights Weigh in the Supreme Court’s Balance of Herrera v. Wyoming

By Joe Sexton

In January, the United States Supreme Court heard oral arguments for Herrera v. Wyoming, a Treaty hunting rights case.   Although some commentators suggest the case will lead to a narrow decision with little shift in Indian Law jurisprudence, and the High Court’s recent decision in Cougar Den certainly supports such optimism, Herrera may ripple deep into Indian Country and affect tribal Treaty rights nationwide.   

The facts of the case are generally undisputed.  In January 2014, Clayvin Herrera along with other Crow tribal members stalked elk on the Crow Reservation in Montana near Eskimo Creek.  Herrera and his fellow hunters followed the elk off the Crow Reservation into the Big Horn National Forest in the State of Wyoming.  The hunters killed three elk in the national forest and brought the meat back to the Crow Reservation in Montana to feed themselves and members of their tribe over the winter.  Herrera asserted a Treaty right to hunt on “unoccupied lands of the United States” within territory the Crow Tribe had ceded to the United States under the Fort Laramie Treaty of 1868; at the time of that particular Treaty, the lands where Herrera killed the elk were part of the Crow Tribe’s unoccupied ceded territory.  Wyoming charged and tried Herrera for two misdemeanors despite his Treaty-reserved right: taking an antlered big game animal without a license and being an accessory to such a taking.

The Wyoming trial court denied Herrera’s motion to dismiss and granted the state’s motion to exclude any mention of Herrera’s Treaty rights at his criminal trial. Barred from even mentioning his Treaty right, Herrera was convicted of both counts. A Wyoming appellate court affirmed the trial court’s decisions and the Wyoming Supreme Court denied review. Ultimately, the Wyoming appellate court held that Mr. Herrera’s Treaty claims were not only barred under the theory that Wyoming’s admission to the Union abrogated the Crow Tribe’s Treaty rights as the 10th Circuit held in Repsis, but that Herrera’s  claims were also barred by the legal doctrines of res judicata and collateral estoppel.

Herrera appealed the case to the U.S. Supreme Court, presenting the question “[w]hether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal Treaty right to hunt on the “unoccupied lands of the United States.”

Wyoming relies on Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995) for its principal argument—that the Crow Tribe’s Treaty right to hunt off reservation, at least on unoccupied lands of the United States within Wyoming, was “repealed by the act admitting Wyoming into the Union.”  Id. at 994.  The Tenth Circuit in Repsis, had, in turn, rested its decision on the U.S. Supreme Court’s holding a century earlier in Ward v. Race Horse, 163 U.S. 504 (1896).  In this 19th Century decision, the Supreme Court held that legislation admitting Wyoming into the union as a state abrogated tribal Treaty rights to hunt on United States land because honoring those Treaty rights would mean Wyoming was “admitted into the Union not as an equal member, but as one shorn of a legislative power vested in all the other states of the Union.”  Id. at 514.  This was known as the “equal footing doctrine,” and is contrary to the general accepted doctrine arising in the 20th Century that states must honor tribal Treaty rights under the United States Constitution’s Supremacy Clause unless Congress has expressly abrogated those rights.  See Antoine v. Washington, 420 U.S. 194, 201-02 (1975).  

Mr. Herrera countered that the U.S. Supreme Court overturned Race Horse in 1999.  See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). Consequently, he argues the portion of Repsis that relies on Race Horse to extinguish the Crow Tribe’s Treaty right to hunt off reservation is no longer good law.  In the absence of Race Horse, Mr. Herrera’s Treaty rights remain viable and state courts and governments are bound to honor them.  

During oral argument, questioning from Justice Sotomayor to the attorney for Wyoming focuses on the danger to all tribal Treaty rights if the Supreme Court issues a broad decision in Herrera in favor of Wyoming.  Justice Sotomayor wanted to know what language in the Treaty at issue in Herrera could result in cancelation of Crow members’ hunting rights throughout the state of Wyoming.  Put another way, Justice Sotomayor is drilling down on the fact that neither the terms of the Treaty, nor a subsequent Congressional act expressly limiting or changing those terms provides that the Treaty rights were “intended to expire upon [Wyoming’s] statehood” as Wyoming’s attorney argued:

JUSTICE SOTOMAYOR:  So tell me what in the treaty says [the treaty right to hunt off reservation] automatically terminates.  I saw a lot of conditions.  I saw the game disappearing, the land becoming occupied, but I don’t see on statehood or even anything approaching it.

MR. KNEPPER:                The – the –

JUSTICE SOTOMAYOR:  Where – where in – just point to something in the treaty language

MR. KNEPPER:               Sure . . . Your Honor, the – the decision rests on the conclusion that unoccupied lands must be of the character of the lands denominated as hunting districts, and that hunting districts were a specific kind of land understood, and that upon settlement, and, you know, there’s a – there’s a process, but culminating in statehood. . .  .

                                         I think that if what you’re asking is are there unoccupied lands within the meaning of the treaty anymore within the State of Wyoming, that’s – that’s what the decision both in Race Horse and in – and in Repsis concluded, that those – those lands – those lands have disappeared.  They no longer exist within the State of Wyoming.

Simply, according to Wyoming the Crow Tribe’s Treaty rights “disappeared” upon Wyoming’s admission to the union, regardless of the absence of any Treaty language indicating its rights were subject to the admission of states into the Union and in the absence of any express intent on the part of Congress in admitting Wyoming to extinguish all tribal Treaty rights within the state.  But Wyoming’s reliance on Race Horse to suggest that Treaty rights can be extinguished by implication imperils all tribal Treaty rights throughout Indian Country.  This threat arises not only from the “equal footing doctrine” Wyoming argued, should be re-embraced in the 21st Century, but—in the event an expansive shift on the law of Treaty construction that may result from Herrera—any argument a state or the federal government might make that Treaty rights are extinguished by implication through some mechanism not expressly negotiated as a condition in the Treaty.

Commentators may be right regarding Herrera and its impending outcome—the holding could be narrow.  In any event, this is a case to follow for anyone concerned with tribal Treaty rights and their future in turbulent 21st Century America. 

Joe Sexton is a partner 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.

DOJ Approves Chehalis Tribe’s Special Domestic Violence Criminal Jurisdiction Process

Left to Right: Janet Stegall, Grant Writer; Jerrie Simmons, Court Director, Jessie Goddard, Vice Chairwoman; Misty Secena, General Manager.

Oakville, Wash. – The Confederated Tribes of the Chehalis Reservation (Chehalis Tribe) is the 24th Federally Recognized Indian Tribe in the United States to fully implement and enact the Special Domestic Violence Criminal Jurisdiction under the Indian Provisions of the Violence Against Women Act (VAWA) to have special jurisdiction over non-Native offenders. The tribal government took many steps leading up to the final approval on March 20, 2019 by the Department of Justice.

Numerous Chehalis Tribal member women served as the driving force behind the process of grant writing, staffing the Tribal Court and revising the Chehalis Tribal Code. Janet Stegall, responsible for writing the VAWA grant, stated as a Chehalis Tribal woman, “I am overwhelmed with the relief that an unforgivable injustice is going to be able to be brought to justice in the future.” Misty Secena, General Manager, hit the ground running by initiating meetings towards implementing the VAWA grant.

Jerrie Simmons, Chehalis Tribal member and the Tribal Court Director with many years’ experience as an Indian Law Lawyer, stated this is the first step in regaining the ability to prosecute non-Natives in Tribal court since the Oliphant v. Suquamish Tribe case of 1978. This case went to Supreme Court with a 6-2 majority vote in favor of Oliphant setting the precedent that non-Natives could not be prosecuted for crimes on tribal territory. This law stood with no latitude for over thirty years until the 2013 VAWA pilot project when the Umatilla (Org.), Pascua Yaqui (Ari.), and Tulalip Tribes (Wash.) became the first three tribes to exercise special criminal jurisdiction on domestic and dating violence.

The tribes that implement this program must meet all of the civil right protections that the US constitution guarantees to a criminal defendant. Therefore, part of the pre-approval process involved revising the Chehalis Tribal Domestic Violence and Criminal Codes to comply with the Federal Law.

The Chehalis Tribe, along with others across the nation, are awaiting expansion of the law to enable prosecution for crimes related to domestic violence; such as crimes against children, crimes against a public officer, etc. Implementation of the VAWA criminal jurisdiction and others will help protect the tribal reservations for current and future generations.

Gabe Galanda: "Reviving Tribal Kinship"

On Thursday, Gabe Galanda delivered a talk, “Reviving Tribal Kinship,” as part of the Indigenous Peoples Law & Policy Program’s Distinguished Alumni Speaker Series at the University of Arizona College of Law.

Gabe’s talk in Tucson was an expanded version of a 10-minute Insight Blast, “Reimagining Tribal Citizenship,” which he delivered at Harvard University’s Kennedy School last spring.

Gabe calls upon tribal communities to reconcile traditional tribal kinship systems and rules with modern Native nationhood, in order to countervail the destruction caused to Indian peoples by colonialism and federalism, particularly through non-indigenous practices like blood quantum and disenrollment.

The slides from his latest talk can be viewed here.

Gabriel “Gabe” Galanda is the managing lawyer at Galanda Broadman. He belongs to the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda, Bree Black Horse Spotlight Local "Lawyer Ethical Quandaries in Indian Country"

Yesterday, at the 16th Annual Northwest Gaming Law Summit, Gabe Galanda and Bree Black Horse engaged in a lively discussion with a packed room about the ethical implications of quandaries in which tribal attorneys might find themselves.

Gabe and Bree used various hypotheticals about tribal faction, disenrollment, and other internal disputes involving tribal in-house and outside attorneys, based on things that have actually transpired in Washington Indian Country in recent years. Download their slides here.

Gabriel “Gabe” Galanda is the managing lawyer at Galanda Broadman. He belongs to the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Bree is an associate in the Seattle office of Galanda Broadman and an enrolled member of the Seminole Nation of Oklahoma.  Her practice focuses on defending individuals’ civil rights in federal, state and tribal courts. She can be reached at (206) 735-0448 or bree@galandabroadman.com.

"Who's Who" Expected at 16th Annual NW Gaming Law Summit in Seattle Next Week

Indian stick game

The Northwest Gaming Law Summit, now in its 16th year, has become a veritable "who's who" event for the Pacific Northwest and national gaming industry. It takes place this year on December 13 and 14, 2018, at the Washington Athletic Club in Seattle, Washington.  

Join Program Co-Chairs Gabriel S. Galanda, a partner and co-founder of Galanda Broadman PLLC, and Frank L. Miller, a founding member of Miller Malone & Tellefson PS. They lead a outstanding faculty, including:

• Hon. W. Ron Allen Chairman of the Washington Indian Gaming Association and the Jamestown S’Klallam Tribe

• Bree R. Black Horse of Galanda Broadman PLLC

• Steve M. Bodmer, General Counsel of the Pechanga Tribal Government 

• Anthony S. Broadman of Galanda Broadman PLLC

• Hon. Jonodev Osceola Chaudhuri, Chairman of the National Indian Gaming Commission

• Joshua Clause of Clause Law, PLLC

• Brian Considine, Legal and Legislative Manager or the Washington State Gambling Commission

• Scott D. Crowell of Crowell Law Office

• David Hawkins, General Counsel for the Upper Skagit Indian Tribe

• Hon. Kathryn Isom-Clause, Vice Chairwoman of the National Indian Gaming Commission

• Rebecca Kaldor of the Washington Indian Gaming Association

• Kate C. Lowenhar-Fisher of Dickinson Wright PLLC 

• John Maier of Maier Pfeffer Kim Geary & Cohen LLP 

• Aurene Martin of Spirit Rock Consulting

• Judith Shapiro of the Law Office of Judith Shapiro

• Hon. Nathan Small, Chairman of the Fort Hall Business Council, Shoshone-Bannock Tribes

• Rahul Sood, Co-Founder/CEO of Unikrn

• Christopher Stearns of the Washington State Gambling Commission

• Hon. Jeromy Sullivan, Chairman of the Port Gamble S'Klallam Tribe

• Deborah Thundercloud, Chief of Staff for the National Indian Gaming Association 

• Hon. David Trujillo, Director of the Washington State Gambling Commission

• Jennifer H. Weddle of Greenberg Traurig LLP 

• Scott Wheat of the Spokane Tribe of Indians

Gabriel “Gabe” Galanda is the managing lawyer at Galanda Broadman. He belongs to the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Corin La Pointe-Aitchison Joins Galanda Broadman

Corin La Pointe-Aitchison has joined the firm as an Associate in the firm’s Seattle office. His practice focuses on litigation involving tribal governments and enterprises, and Indian civil rights. 

“Corin understands and shares our tribal values,” said Gabe Galanda, the firm’s managing lawyer.  “We are excited that he’s joined our team.”

He received his law degree from the Lewis and Clark School of Law in 2017, where he served as President of the Native American Law Students Association. He holds a Master of Arts in Communications and Bachelor of Arts in English Literature, each from University of Southern Florida.

Corin moved from Portland, Oregon to join the firm. His prior practice focused on personal injury, contract, and insurance law. During his time in Oregon, he worked with the multiple non-profits focused on improving the lives of urban Native Americans.

He enjoys hiking, canoeing, kayaking, camping, and climbing.  

Corin is a Koyukon Athabaskan descendant whose family hails from Nulato, Alaska.

Galanda Broadman, PLLC, is an American Indian-owned law firm with offices in Seattle and Yakima, Washington and Bend, Oregon. The firm is dedicated to advancing tribal Treaty and other sovereign legal rights, and Native American civil rights.

Amber Penn-Roco, Social Justice Tuesday, UW Law School, "Trump's Dismantling" of Bears Ears

President Trump signs an executive order at the Department of the Interior in April, shrinking Bears Ears National Monument in Utah

On Tuesday, November 13 at 12:30, Amber Penn-Roco will speak at the University of Washington School of Law, from her new article, "Trump’s Dismantling of the National Monuments: Sacrificing Native American Interests on the Altar of Business," which the National Law Guild published in its journal, Review. Amber will speak as part of the law school’s Social Justice Tuesday series.

View the flyer for her speech here.

Amber’s 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.

Galanda Broadman Once Again Named "Best Firm" in Native American & Gaming Law by U.S. News

Galanda Broadman, PLLC, has been named a “Best Law Firm” by U.S. News - Best Lawyers in the arena of Native American Law and Gaming Law, for the seventh year in a row. 

According to U.S. News - Best Lawyers, the firm's national ranking was determined through the firm's overall evaluation, which was derived from a combination of Galanda Broadman’s “clients' impressive feedback” and “the high regard that lawyers in other firms in the same practice area have for [the] firm.” 

Galanda Broadman, “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests, and defending Indian civil rights. The firm, with eight lawyers and 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, taxation, civil rights, and tribal belonging.

National Law Guild Publishes Amber Penn-Roco On "Trump’s Dismantling" Of Bears Ears

Amber Penn-Roco’s article, "Trump’s Dismantling of the National Monuments: Sacrificing Native American Interests on the Altar of Business," has been published by the National Law Guild in its journal, Review. A passage:

President Trump has demonstrated an utter disregard for the preservation of the land and for the recognition of tribal interests; he has proven that when those interests compete with private business interests, he will always protect the businessman, to the detriment of tribal people across the nation.

Amber’s 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.