State Court Honors Nooksack “Disenrollee” Treaty Fishing Rights

The Rabangs with Corin La Pointe-Aitchison of Galanda Broadman (at right), at the Whatcom County District Court, on February 10, 2020

Last Thursday, the Whatcom County District Court dismissed criminal charges against Michael, Francisco, James, and Lisa Rabang for subsistence clamming outside of Bellingham, Washington last May without a state recreational shellfish license.  The Rabangs are part of the extended family of purportedly disenrolled Nooksack Indians commonly known as the Nooksack 306.

The Rabangs argued to the state court that because they were never lawfully disenrolled by the Nooksack Tribe, they still enjoy Treaty rights to fish in usual and accustomed Nooksack fishing places. Under federal law, those Treaty rights include the right to take shellfish without a state license and those Treaty fishing grounds include the Semiahmoo Spit, where the Rabangs were criminally cited by the Washington State Department of Fish and Wildlife last spring. 

The District Court dismissed each of the charges “in the interests of justice.”

“My clients have steadfastly maintained that they have never been lawfully disenrolled from the Nooksack Tribe and a state court judge now seems to agree with them,” said Gabriel S. Galanda, the Rabangs’ criminal defense lawyer.  “They have always been and will always be Nooksack.”

In 1855, the Nooksack Tribe signed the Point Elliott Treaty, which guaranteed Nooksack Indians “the right of taking fish at usual and accustomed grounds.” Washington State recognizes Semiahmoo Spit as one of several usual and accustomed Nooksack fishing areas. 

Despite its status as a Treaty signatory, the Nooksack Tribe did not obtain federal recognition until 1973, at which time they began to enroll Tribal members.  The Rabangs have been enrolled with the Nooksack Tribe dating back to the early 1980s. 

The Nooksack Tribal Council proposed that the Rabangs be disenrolled in February of 2013, but a series of Nooksack trial and appellate court and federal administrative court injunctions and stays prevented the disenrollment. 

A group of holdover Tribal Councilpersons purported to disenroll the Rabangs anyway, in November of 2016.   But the Federal Government interceded. 

In late 2016, U.S. Department of the Interior Principal Deputy Assistant Secretary of Indian Affairs Lawrence Roberts issued three decisions that operated to invalidate the purported disenrollment activity. Those decisions were never withdrawn by Interior; they stand today. 

By March of 2018, a newly constituted and recognized Tribal Council again attempted to disenroll the Rabangs, even though disenrollment remained frozen by the tribal and federal courts.  Those injunctions did not lift until April of 2019, if at all. 

Having not been since disenrolled, the Rabangs exercised their Nooksack Treaty fishing rights by harvesting clams at Semiahmoo Spit during the early evening on May 10, 2019.  When a law enforcement officer approached them and asked if they had state shellfish licenses, the Rabangs produced their Nooksack enrollment cards instead and explained they were subsistence clamming.

The officer reported that James Rabang “stated ‘no’ they do not to have any permits to harvest for subsistence.” It seems the Rabangs were right.

Facebook’s Violence Against Indigenous Women Problem

Example post from fake Keith Williams Facebook page, at left; Leandra Smith social media post, upper right; real-life Keith Williams photo, lower right.

Last month, High Country News published a feature story by local writer Jane Hu titled, “One woman took a stand against tribal disenrollment and paid for it.” 

The article chronicles how a few tribal politicians and their surrogates persecuted Carmen Tageant, an Indigenous woman who belongs to the Nooksack Tribe and served on its Tribal Council, because she denounced their efforts to exile over 300 other Nooksack Indians from the Tribe.  They burglarized Carmen’s home in rural Whatcom County and stole photos of her in lingerie, which she had taken as a Valentine’s Day gift for her boyfriend sixteen years prior. 

That was only the beginning.   

In January of 2016, a Nooksack Tribal employee, LeAndra Smith, posted a photo of Carmen posing with her legs in the air on a fake Facebook profile.  That page bore the name and photo of Keith Williams, a witness involved in the Casey Anthony murder trial in 2008.  Using federally funded computer equipment, a cell phone, and the Nooksack Tribe’s data network, LeAndra—masquerading as “Keith”—proceeded to write, post, share, and like hateful statements on that Facebook page about Carmen, like: “Spreading lies and legs,” “Kick that slutbox to the curb,” and “C.U.N.T.”  Carmen soon received messages from predators on Facebook, hounding her for sex and inviting her to meet up at nearby hotels.  She feared for her safety, and for that of her seven children, and eventually suffered a debilitating mini-stroke as a result.  She was removed from public office.  Despite her master’s degree, Carmen could not find other employment because of her damaged reputation and her medical condition.  She was forced to file for bankruptcy. 

This article explains what happened, and did not happen, for Carmen legally. It explains how available legal processes do not protect victims from cyber bullying or sexual harassment on Facebook, or deter the physical stalking or violence that stems from online attacks. 

Carmen Tageant #StopDisenrollment

In early February of 2016, Carmen reported to Facebook: “Keith Williams is a fake profile…He is posting stolen photos of me and slandering me[, c]yber bullying me and my reputation.  Please help. I’m going to law enforcement.” Facebook messaged Carmen a reply ten days later: “We received your report and appreciate your patience and we work to fix technical problems on Facebook.  Though we can’t update everyone who submits a report, we’re using your feedback to improve the Facebook experience for everyone.”  Carmen’s situation was not a technical problem.  Nor was it a matter of improving everyone’s Facebook experience.  She sought protection, without any success.  Facebook never got back to Carmen.  Nor did Facebook ever take down the Keith Williams page.

“Keith Williams” remained online for the next two years, during which time Carmen was subject to a constant barrage of hatred.

Carmen also reported to Nooksack Tribal police “about a private picture of her in lingerie being shared on the social media website FaceBook.”  She also filed a report with the Whatcom County Sheriff, explaining that after the lingerie photo was posted, she “was always looking over [her] shoulder . . . and watched the facebook slander continue to demolish my reputation.”  Nothing came of either report to local law enforcement. 

Nobody has yet been charged for the crimes against Carmen.

In January of 2018, we filed suit against “John Doe” in Whatcom County Superior Court, claiming common-law state torts and violation of RCW § 4.24.795, Washingon State’s new “revenge porn” law.  Alleging that “nothing meaningful has been done…to investigate the harassment she has endured…or to ascertain Defendant John Doe’s true identity,” Carmen sought “answers, and justice, through this civil proceeding.” We moved the Superior Court for a subpoena duces tecum to Facebook, seeking the user information associated with the page needed to identity Carmen’s tormentor.  We briefed and overcame Defendant John Doe’s First Amendment privacy rights, demonstrating to the Court, even on an ex parte basis, that a narrow request for the identifying information minimized any prejudice to the defendant—whoever that was. 

We were surprised to learn that arguably even a John Doe-harasser has a free speech right to remain anonymous. 

We domesticated the subpoena in the San Mateo County Superior Court and served it upon Facebook in Menlo Park, California, which resulted in a letter from Facebook’s outside counsel that objected to the extent we sought “the content of a user’s electronic communications” and cited to the federal Stored Communications Act. 18 U.S.C. § 2702(a)(1), (2); (b)(1)-(8).  In other words, we could not obtain any messages that the individual masquerading as Keith Williams sent or received through Facebook—such as messages that may reveal who burglarized Carmen’s home. 

Facebook agreed, however, to produce “reasonably accessible basic identifying information (which may include name, email address, date of account creation, and information such as recent [Internet Protocol (IP)] logs for when a user account has logged in and out of Facebook),” but “recent” only meant the few most recent months of user data—and not that for the early 2016 lingerie post—because Facebook routinely deletes that data.  Facebook also said it would give “notice to the affected user and allow[ing] the user 21 days to file an objection with the court.”  We presume Facebook gave LeAndra notice and she ignored it—for fear of outing herself—but Carmen was not privy to that line of communication. 

After two months of subpoena process, Carmen finally obtained the Facebook user information associated with the Keith Williams page.  But it was not yet enough to identify her harasser. 

What the Facebook user information did reveal was that Verizon Wireless and Comcast owned the IP addresses that show user access to the Keith Williams page.  With that information, we headed back to Whatcom County for records subpoenas to Verizon and Comcast.  We again briefed John Doe’s free speech privacy rights, this time along with the federal Cable Privacy Act, which prohibits a cable operator from disclosing “personally identifiable information concerning any subscriber without the prior or electronic consent of the subscriber,” unless disclosure is made per court order and upon notice to the subscriber. 47 U.S.C. § 551(c)(1). The Superior Court issued two more subpoenas. We then headed to New Jersey to domesticate and serve them on Verizon and Comcast.  

Comcast notified the Nooksack Indian Tribe of its subpoena, which caused the Tribe to seek a protective order in Whatcom County—and implicate itself.  The Tribe claimed that its sovereign immunity shielded Comcast from the subpoena.  The Whatcom County Superior Court disagreed and refused to issue a protective order, and both companies produced the subscriber information connected to the Keith Williams page. 

We were stunned when that information pointed to the Nooksack Tribe’s server, a personal computer and tablet used at the Tribe, and LeAndra Smith’s cellular number and iPhone.

It took two and a half years for Carmen to identity the person who used Facebook to cause her a stroke, bankrupt her, and otherwise ruin her life.

With the technological proof in hand, our office engaged a former FBI agent to do law enforcement’s work.  He issued a detailed report that showed exactly how “Tageant was the target of cyber harassment” through the use of  “federally funded information technology that traces to at least one person, one cellular phone, and [IP] addresses connected to the Nooksack Indian Tribe…”  We transmitted the agent’s report to the U.S. Department of Justice.  Only after a U.S. Congressperson sought answers from the Justice Department was a response issued: word from the Office of Attorney General Bill Barr that “no federal criminal charges can be brought at this time.” 

Criminal justice still eludes Carmen.

We did settle Carmen’s civil case soon later after we identified LeAndra, who still works for the Nooksack Tribe.  But imagine if Carmen—like the vast majority of Indigenous women—did not have legal counsel.  She would have never been able to identify her Facebook harasser, or do anything to cause the cyber abuse to stop. 

Imagine if Carmen’s life was being imminently threatened, while we patiently negotiated federal and state privacy law and records subpoena process in three states.  She would have been left helpless, without police protection—left to constantly look over her shoulder. 

Our laws and legal processes, as they relate to Facebook and its Big Tech brethren, are inadequate and unethical.  They are morally wrong.  They aid and abet, rather than expose and disarm, cyber abusers.  That is especially true in Indian Country, where the number of missing and murdered Indigenous women has reached an epidemic level.  Unless we overhaul our legal system, there will be more victims like Carmen.  

We can be sure that Facebook will fight any legal reforms, under the guise of free speech and privacy.  In the meantime, lawyers and lawmakers who refuse to protect Indigenous women put them at risk.  It is not a risk Indigenous families can bear.     

Gabriel S. Galanda is the Managing Lawyer at Galanda Broadman, PLLC, an Indigenous rights law firm.  Gabe belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.  He credits Elisabeth Guard and Bree Black Horse and for Carmen’s civil legal success.

Gabe Galanda Calls Upon NCAI To No Longer "Look Away" From Disenrollment

Gabe Galanda appeared on Native American Calling today for the show, “Disenrollment—on the rise?”

Joined by Dr. David Wilkins, Gabe explained the very latest rise in disenrollment, observing: “We are basically in a termination era much like we were in the 1950s. We’re in a tribal self-termination era.”

In response to a question about what Indian Country can do to prevent further self-determination, Gabe called for the National Congress of American Indians (NCAI) to end its silence on disenrollment:

The national Indian organizations absolutely must begin to tackle this issue.  They have sat silent for too long and they are complicit in this mode of self-termination. 

Thy say ‘oh it’s an internal matter, it’s a sensitive matter’ and candidly that’s hypocritical. 

They say the United States shouldn’t be involved because it’s ‘internal’ or ‘sensitive’ and that’s hypocritical. 

When our children are at risk under the Indian Child Welfare Act, we ask the United States to write a rule to protect the children, which the Obama Administration did. 

When our women are being abused by non-Indian domestic violence offenders in Indian Country, we ask the United States Congress [to] restore our inherent tribal jurisdiction under the Violence Against Women Act. 

Now our women are being murdered and going missing at epidemic rates and we have asked the Trump Administration to do something about it. 

Those are also ‘internal matters.’  Those are also ‘sensitive matters.’ 

Indian Country is on the same page on those issues. They’re asking for the United States’ help.  They’re talking to each other about a solution at forums like NCAI. 

But on disenrollment it is a cop out to suggest it is ‘internal’ or ‘sensitive’ and look away.  And for as long as NCAI or other groups look away and sit silent, they are complicit.

Gabriel S. Galanda is the Managing Lawyer at Galanda Broadman, PLLC, an Indigenous rights law firm.  Gabe belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples. 

Our Trustee Must Help Stop Disenrollment

Indigenous America is one again facing off with disenrollment. 

History shows that the rise and fall of disenrollment correlates to the federal government’s behavior toward that tribal self-terminationist practice.

The United States owes each Tribal citizen a trust responsibility of exacting care and loyalty, which includes protection against politically motivated disenrollment.  Ironically, though, federal laws have been catalysts for every disenrollment. 

Disenrollment stems from a confluence of historic and modern federal forces:

·      Racialized notions of Indian Tribal individual status, like the trope of “mixed blood” under the federal Dawes Act in the late 1800s;

·      Blood quantum, the Euro-centric racial fiction created and codified by Congress dating back to 1908;

·      Non-traditional constitutional governance, membership, and disenrollment systems, as per the federal Indian Reorganization Act (IRA) of 1934;

·      “Pro rata” or “per capita” distributions of Tribal communal wealth to enrolled individuals, thanks to Congress’ Lacey Act of 1907 and Indian Gaming Regulatory Act of 1988;

·      Congress’ termination of Tribes in the 1950s and the reassembly and federal re-recognition of Tribes since the 1970s; and

·      “[G]raft, corruption, and the making of decisions by inexpert minds,” which, in 1941, IRA-drafter Felix Cohen foretold of non-Indigenous power systems.

In each of these ways, one after the next, the federal government has decimated Indigenous kinship systems, or what Dakota anthropologist Ella Deloria described as community norms of “decency and order”—in essence, “achieving civility, good manners, and a sense of responsibility for every individual dealt with. “

Even worse, the United States has annihilated certain Indigenous communities’ inherent ability to self-resolve internal crises; or, as Deloria explained, to enforce  “the rules imposed by kinship.”  Too many of those imperiled communities now risk self-annihilation without federal protection that will enable Tribal kinship revival.

The United States’ failed reliance upon Tribal self-determination to avoid such existential crises is a neocolonial excuse to finally kill the Indian and save the man.

All the while, disenrolling Indian politicians exploit these tensions to fulfill their own agenda: Concentrate Tribal cash and resources to favor their political base and, in turn, sustain their personal wealth and political power.  As they plot their scheme, those politicians pay lawyers and lobbyists to ascertain whether the federal government is watching—and willing to do anything to stop them.

From 1908 to 2009, the federal government did stand watch over disenrollment.  The Department of the Interior adjudicated or reviewed disenrollment actions in fulfillment of the United States’ Treaty and other promises to protect Indigenous Americans, which constitute a “moral obligation of the highest responsibility and trust” according to the U.S. Supreme Court.  Seminole Nation v. U.S. (1942).

In fact, until at least the late 1990s it was codified Bureau of Indian Affairs (BIA) policy to review disputed Tribal disenrollment determinations.  BIA involvement continued for two decades after the Supreme Court’s insidious jurisdictional decision in Santa Clara Pueblo v. Martinez (1978).

It was not until the spring of 2009 that the Obama Administration abruptly looked away from disenrollment affairs, citing “a policy of Indian self-determination and self-government.”  By that time, disenrollment was largely confined to California. But that casual federal policy decision, though well intentioned, proved disastrous. 

Tribal politicians seized the moment.  Disenrollment exploded into twenty states.  Dozens of Indigenous communities were co-opted.  Tribal courts were overthrown.  Police violence erupted.  Thousands of Tribal citizens were exiled.

All of Indian Country suffered a black eye.

By 2016, Interior corrected course.   Amidst multiple federal Indian Country justice initiatives—the Tribal Law and Order Act most notably—the Obama Administration grew concerned about perceptions of Tribal justice systems as corrupt and unjust. 

Interior took action, making examples out of the most egregious disenrollment offenders.  The agency suspended the Nooksack Tribe’s federal funding recognition amidst unfathomable disorder surrounding the disenrollment of 306 Tribal citizens; and intervened in federal court when the entire 132-person Elem Pomo Colony population faced disenrollment and exile.  The National Indian Gaming Commission shuttered lucrative gaming facilities at Nooksack and the Picayune Rancheria of Chukchansi Indians, where the rule of law had ceded to violence and anarchy.

Offering insight into the United States’ thinking at the time, immediate past Interior Assistant Secretary of Indian Affairs, Dean Kevin Washburn, warned that Tribes engaged in “unjust disenrollment” could face federal “diplomatic consequences, which could be fiscal in nature, equivalent to economic sanctions.” 

Indian Country took note, and disenrollment waned. For almost three years, there was not a new disenrollment.  

But that changed by late 2018.  With the Trump Administration too preoccupied to stop Tribal corruption or reflect upon the real-life consequences of its actions or demurrals, Interior officials sanctioned two obviously illegal elections at Nooksack and proposed to cease BIA blood quantum determinations. 

Tribal despots realized the Trustee’s priorities had shifted, and took full advantage.

Omaha Tribe of Nebraska politicians disenrolled fifteen citizens and placed hundreds more in harm’s way via clandestine blood quantum adjustments.  A Modoc Tribe of Oklahoma conspirator terminated a three-generation family of fifteen after an elder questioned his “rent-a-tribe” schemes. The Rincon Band of Luiseno Indians disenrolled at least nine citizens based on a non-Indian anthropologist’s blood quantum “audit” findings and California Indian Legal Services’ advice.  And Picayune autocrats jettisoned another sixty tribal citizens, just because they could.

Disenrollment returned and Indian Country’s black eye darkened—and it is only worsening. 

(A forthcoming disenrollment documentary movie produced by California card-room owners, titled “Banished,” will further tarnish all Tribes’ reputations.)

History shows that the United States deters disenrollment through performed duty.  “See no evil, hear no evil” is not acceptable federal policy.  Nor is it lawful. The United States has a moral trust responsibility, according to the highest laws in the land, to protect against disenrollment.  America’s “national honor has been committed” to guard Tribes and Tribal citizens alike.  Heckman v. U.S. (1912).

Whether through exercising federal discretion to diffuse Tribal corruption, imposing government-to-government economic sanctions, amending the Indian Civil Rights Act, or deploying other deterrent measures, our Trustee must do something.

The United States must help stop disenrollment.

Gabriel S. Galanda is the Managing Lawyer at Galanda Broadman, PLLC, an Indigenous rights law firm.  Gabe belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.  The fifth annual #StopDisenrollment visual advocacy movement will happen on February 10, 2020.

Seattle National Archives Closure Would Hurt Northwest Tribal Heritage

The Trump Administration is preparing to shutter the National Archives facility located in Seattle’s Sand Point neighborhood and sell the property to the highest bidder. This plan would hurt Indian Country, particularly Indigenous Americans who seek to prove or confirm their belonging in their Tribal communities.

The Sand Point location is a repository for all federal records generated in the Pacific Northwest, including historical documents relating to the 272 federally recognized tribes in Alaska, Washington, Oregon, and Idaho. Notably, “[i]t contains important treaty documents.” As Josh Wisniewski, an anthropologist for the Port Gamble S’Klallam Tribe, explained to the Seattle Times: “You can see an earlier draft of a treaty.”

The facility also includes various federal land, census, and other information that tribes and tribal citizens use to establish or confirm tribal history and heritage. As genealogist and historian Trish Hackett Nicola explains:

Tribal members use these files to establish or keep membership in tribes. Proof of tribal citizenship is used to obtain education funds. Tribal records have been used for retaining fishing rights, as in the Boldt Decision. Native school records from Alaska and Oregon are included in the NARA collections.

The Muckleshoot, Puyallup, and Port Gamble S’Klallam Tribes were quick to denounce the proposed closure and sale. Read Puyallup and Port Gamble’s opposition letters here.

Senators from Washington, Alaska, Oregon and Idaho, and eight of Washington’s ten House Representatives also condemned the proposal, in part because of the negative impacts it would have on Indian Country.

The facility houses records, both archival and in storage, that are vital to...tribal members…

Nor were Native American tribes or Alaska Natives consulted about the proposed relocation of records so important to their sovereignty and history.

This facility’s Textual Research and Public Access Research Rooms...provide in-person access to records of importance on a broad range of issues and topics...including....tribal membership…

Our firm has represented many Indigenous persons who seek Tribal citizenship, and hundreds of Tribal citizens facing disenrollment by politicians in charge of Tribal governments in Washington and Oregon.

The Sand Point location, which is within two miles of our office, is one of those clients’ first stops when seeking to establish or confirm that they belong to their Indigenous communities.

Disenrollees, in particular, travel from throughout the Northwest to Sand Point, at significant expense, to search for federal allotment and other Indian land records; U.S. censuses and Indian rolls; and Indigenous ancestors’ marriage and birth certificates and other vital records. They do so with a proverbial gun to their head, often expected to find such genealogical information within a few weeks.

Moving those records to National Archives storage in Kansas City and Southern California would render that information unavailable to disenrollees when needed the most, as well as other Indigenous Americans who casually seek ancestral information to ascertain or confirm their sense of belonging.

All of Indian Country would suffer if this plan is realized. Please do your part to help preserve our heritage:

1. Email the Office of Management and Budget’s Acting Director Russell T. Vought:  Russell.t.vought@omb.eop.gov.

2. Email the agency proposing the sale, the Public Buildings Reform Board: fastainfo@pbrb.gov.

3. Contact the National Archives via its contact page at https://www.archives.gov/contact.

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.

Trump’s NEPA Rollback Will Hurt Indigenous Communities

By Amber Penn-Roco

President Trump proposes to gut the National Environmental Policy Act (“NEPA”). 

A proposed rule, now published in the Federal Register, suggests significant changes that would narrow the range of projects that would require  NEPA review and impose strict deadlines for the completion of NEPA review.  The changes would also eliminate the need for agencies to consider the “cumulative impacts” of projects, namely: climate change.  The changes would also make it more difficult for affected local communities to comment on projects.

Minority communities would be disproportionately impacted by the proposed changes.  “The most vulnerable communities are going to pay with lives and their health.  They always have,” said Mustafa Santiago Ali with the National Wildlife Federation, previously a senior advisor at the Environmental Protection Agency.  “Moving forward with this is reckless and will endanger the lives of black and brown communities and indigenous communities.  It’s really that simple.”

Historically, the Intergovernmental Panel on Climate Change found that:

Indigenous peoples of North America are disproportionately vulnerable to climate change.  The most vulnerable industries, settlements, and societies are generally those in coastal and river flood plains; those whose economies are closely linked with climate-sensitive resources; and those in areas prone to extreme weather events.  Nearly all tribes fit into one of those categories . . .

The Intergovernmental Panel found that, in particular, Tribes that rely on fisheries will be significantly impacted by climate change, explaining:

The Environmental Protection Agency predicts that the next 40 to 80 years will see the loss of more than half of the salmon and trout habitats throughout the United States.  These are fish that a large number of tribes rely on for subsistence, cultural practices, and economic development.  Native foods and fisheries are also declining, and tribal access to traditional foods and medicines is often limited by reservation boundaries.  The large role of climate change in separating tribal people from their natural resources poses a threat to Indigenous identity.

Indigenous communities will be disproportionally impacted by any impacts to the environment caused by the rollback of NEPA, particularly insofar as the proposed rule would: (1) eliminate the consideration of climate change impacts; while (2) limiting the voices of local communities. 

That’d amount to a double whammy for Indigenous peoples.

The proposed rule is subject to a 60-day public comment period; public comments must be received by March 10, 2020.  The proposed rule will also be subject to two public hearings, in Denver, Colorado on February 11, 2020; and in Washington, DC on February 25, 2020. 

I strongly urge Indigenous communities and leaders to submit public comments challenging the proposed rule and to ensure Indigenous voices are heard at both of these hearings.

Amber Penn-Roco is an Owner of Galanda Broadman, PLLC.  Amber practices in the firm’s Seattle office.  Amber’s practice focuses on the protection of tribal environmental, natural and cultural resources.  Her practice also includes promoting the economic development of tribes.  She is an enrolled member of the Chehalis Tribe.

Amber Penn-Roco Promoted to Partner at Galanda Broadman

On January 1, 2020, the Galanda Broadman law firm welcomed Amber Penn-Roco into its ownership ranks. Amber’s practice focuses on Indigenous environmental compliance, permitting, and litigation, from the tribal governmental point of view.  She represents Tribes and Tribal citizens throughout the West.

“I am so proud of my work at Galanda Broadman, where I have been allowed to make my passion into a practice,” said Amber. “I am proud to call myself an Indigenous environmental lawyer. I’ve dedicated my practice to the protection of natural and cultural resources and I’m thrilled to continue my work as a partner on behalf of Indigenous peoples.”

Over the last several years, Amber has fought for tribal clients in Washington and Oregon who seek to protect the Columbia River Gorge and Pacific Coast from fossil fuel contamination. 

On behalf of a Treaty Tribe, she persuaded the Columbia River Gorge Commission to uphold a county’s denial of a railroad expansion permit that was being sought to increase fossil fuel cargo in the Gorge.  She also helped the Tribe persuade the Washington State Energy Facility Site Evaluation Council to deny a permit that would have allowed Tesoro Savage to transport 360,000 barrels of crude oil each day through the Gorge.

To accomplish these results for her tribal clients, Amber uses federal and state environmental statutes—like the National Environmental Policy Act, federal Endangered Species Act, and State Environmental Policy Act—as well as federal Indian Treaties and tribal environmental laws.

“I have the distinct honor of helping Tribes protect their homelands for sake of the next seven generations,” continued Amber. “I help protect their air, their waters, and their spectacular sacred places.  I am indebted to my tribal clients for the opportunities they have given me.”

Amber also helped 66 Grand Ronde Tribal citizens who directly descend from the Tribe’s Treaty Chief, avoid political disenrollment.  She co-chaired administrative, trial, and appellate litigation that began in 2013 and culminated with a watershed appellate decision in 2016.  That decision required the family to be re-enrolled.  

In recognition of her various professional accomplishments, Super Lawyers magazine has bestowed Amber with its “Rising Star” honor for the last four consecutive years.  During that same timespan, she has served on the Editorial Board for the National Lawyers Guild’s prestigious journal, Review.

In 2016, Amber published “Standing Rock and the Erosion of Tribal Rights” in Review, where she decried that “Tribes are suffering from an onslaught of projects…that imperil their rights and their sacred duty to protect their surrounding natural resources and culture.” She explained:  “A tribe’s rights are often attacked on multiple fronts. Projects that threaten them are often wide-scale and multi-dimensional.  Tribes are often forced into a battle of attrition, in which they must defend their rights before a wide variety of decision-makers.”

In 2018, Amber also published “Trump's Dismantling of the National Monuments: Sacrificing Native American Interests on the Altar of Business” in Review, condemning the Trump Administration’s demolition of Bears Ears and other National Monuments, which are also sacred spaces for many Indigenous peoples.  She excoriated President Trump for his “utter disregard for the preservation of the land and for the recognition of tribal interests,” explaining: “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.” 

Fearing, as she wrote in 2016, that “Tribes are suffering a death by a thousand cuts”—through battles in sacred places like the Columbia River Gorge, Standing Rock, and Bears Ears—Amber is ever-committed to protecting Indigenous communities from legal, environmental, or cultural harm.

Nine years ago, Amber began her career at K&L Gates, where she represented the Duwamish Tribe, pro bono, in their efforts to seek federal recognition.  She also worked in the Native American Unit of the Northwest Justice Project, helping to provide access to justice to indigent Indigenous populations.  Amber received her law degree from the University of Washington School of Law.

Amber was born and raised in Chehalis, Washington. She is married to David Caverly, a private chef, and she is mother to their baby girl, Lily.  In her free time, she enjoys reading, hiking with her dogs, and going to street fairs.  Amber is an enrolled member of the Confederated Tribes of the Chehalis Reservation.

Galanda Broadman is an Indigenous Rights Law Firm with seven lawyers, and offices in Seattle and Yakima, Washington and Bend, Oregon and an affiliate in Tucson, Arizona.  In existence since 2010, the firm is dedicated to protecting and defending Indigenous Treaty and sovereign rights, economic interests, and human rights.

“I am excited for my future with the firm and the ability to take a more active role in our team’s practice of law,” concluded Amber.  “And I am excited to help protect Indigenous America against further environmental degradation or cultural destruction.”

Gabe Galanda: "More Gaming Monies [Per Caps] Means More Problems [Disenrollment]"

Gabe Galanda is featured in Indian Gaming magazine’s “Ask the Expert” column titled, “Spotlight on 2020 and Beyond.” Gabe discusses the origins and perils of gaming per capita checks, and the resurgence of power-crazed and greed-addled disenrollments over the last year.

Here’s his full commentary:

In 2020, Indian gaming gross revenues should eclipse $34 billion. Those dollars will continue to bring economic vitality to 241 governmental gaming tribes. But far too often, more gaming monies means more problems.

As the late, great Dave Palermo reported, 130 – or 53% –  of those 241 tribes allot and distribute large chunks of those dollars to tribal citizens as per capita payments. At a correct amount, those payments supplement citizens’ earned income and allow their families to achieve middle class status or greater. But at an incorrect amount, those payments can create disincentive for employment, higher education, or vocational training.

Gaming per capita distributions also impact, and impair, tribal governmental operations and growth. By Congressional design in 1907, the first statutorily authorized tribal “pro rata” distributions to “competent” Indians weakened tribes, by draining their communal wealth. As millions of ancestral land acres were allotted and lost in the Dawes era, so too were tribal dollars.

Today’s gaming per capita distributions, which Congress authorized in 1988, divert billions of dollars away from tribal governmental operations and infrastructure. Rather than pooling those monies to build a new diabetes clinic or wellness center or to make capital investments, those monies get divvied up and spent. Yet, as tribal citizens clamor for more and more “per cap” from their elected leaders, too few appreciate the assimilationist origins and insidious nature of those monies.

There is not yet any empirical research on the impacts that gaming or other per capita payments have on tribes and their citizens, but perhaps tribal economists and political scientists can commence such critical research in 2020. Meanwhile, disenrollment is again on the rise. Although disenrollment waned between 2016 and 2018 as Indian Country got reeducated about the practice’s colonial origins and self-terminationist effects, wayward politicians in several communities decimated their own kin in the last year.

At least six tribes, hailing from northern, central, and southern California, Oklahoma, Nebraska, and Michigan, pursued the disenrollment of as many as 600 tribal citizens during that span.  That increases the total of known disenrolling tribes to approximately 85 – a confounding 15% of all federally recognized tribes – and the total of known disenrollees to about ten thousand – an equally confounding statistic.

In their eye-opening book, Dismembered, Dr. David and Shelly Wilkins’ correlate modern mass disenrollment to gaming per capita greed. Gaming per capita regimes “promote membership decisions that culminate in disenrollments of otherwise qualified members because tribal officials want to limit the number of people who receive a portion of the money and thereby increase the size of each portion.” By ensuring that a smaller number of people get more gaming money, those politicians buy themselves long, lavish careers in power. That's not at all what IGRA intends.

Let’s hope for less per capita problems – and no disenrollment – in 2020.

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.

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 eighth 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 Indigenous human rights.

The firm, with seven 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, sovereignty, taxation, civil rights, and belonging.

“Reviving Indigenous Kinship Systems” Presentation By Gabe Galanda

Yesterday Gabe Galanda delivered a lecture titled "Reviving Indigenous Kinship Systems” to a packed classroom at his alma mater, Western Washington University. Read his slides here.

Gabe’s presentation drew on the Indigenous scholarship of Ella Deloria, Darrell Kipp, Rob Williams, Dr. Kim TallBear, David Treuer, Nick Estes, and others.

A van-full of Indigenous students from Northwest Indian College, as well as Indigenous students from WWU, including members of the Nooksack 306, attended Gabe’s presentation.

Nooksack Elder George Adams, the last fluent Nooksack speaker of Lhechelesmen, joined Gabe to explain to the students, in Lhechelesmen, traditional notions of Indigenous kinship and belonging by way of place.

Gabe Galanda and George Adams, with Northwest Indian College students

Gabe Galanda and George Adams, pictured with Nooksack 306 students from WWU and Northwest Indian College

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.