Is Legal Academia Breaking its Silence Regarding Indigenous Human Rights Abuse?

For the better part of the last quarter century, legal academia has sat silent in the face of obscene Indigenous human rights abuse in Indian Country, specifically disenrollment. Why? Because a great many Indigenous legal programs depend on gaming money, if not disenrollment chiefs’ blood money.

But there are signs that the taboo is breaking.

Certain Indigenous legal programs have shattered their institution’s silence regarding domestic Indigenous human rights abuse and citizenship deprivation.

In 2017, the University of Arizona College of Law’s Indigenous Peoples Law and Policy Program (IPLP) shattered barriers when it hosted the “Who Belongs?” conference. For its part, the Michigan State University College of Law does not shy away from publicizing disenrollment controversies and thereby shaming disenrollment chiefs and domestic Indigenous human rights abusers. Better yet, the Yale and Cornell Law Schools now co-convene the Saginaw-Chippewa Disenrollment Clinic.

More work, however, must be done to eradicate the taboo. Last fall, when assembling a coalition of supporters for NCAI’s Tribal Citizenship Protection Task Force Resolution, I was surprised that more Indigenous legal programs did not join the effort. UC Boulder's First Peoples Worldwide and Arizona’s IPLP were the only two programs that signed on (although several professors did individually). The bottom line is Indian gaming still has a powerful grip on the Indigenous legal education establishment.

So while there is reason for hope, there is still more reason to break the silence.

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

Another Qualified Immunity Travesty

By Ryan Dreveskracht and Emmerson Donnell

On May 11, 2016, Andre Gerard, a pre-trial detainee in New York, refused to shave his beard for a police lineup for religious reasons. In response, NYPD Detective Michael Bia took out his gun and threatened to shoot Gerard if he did not comply.  This was an overt use of excessive force.  Yet, according to a ruling issued this month from the U.S. Court of Appeals for the Second Circuit:

Drawing all inferences in favor of Gerard and assuming, for purposes of this appeal only, that Detective Bia brandished his gun and threatened to shoot Gerard when he volubly refused to [shave his beard], Detective Bia was entitled to qualified immunity.

The court accepted that Gerard's constitutional rights were almost certainly violated, yet refused to act.

This case is the latest travesty of justice resulting from the judge-made “qualified immunity” doctrine. Every day citizens’ constitutional rights are violated, and these constitutional violations go unpunished because of qualified immunity.  With each dismissed cased, the sanctity of our Nation’s constitutional rights and the public’s perception of a fair justice system continue to erode.  With each dismissed cased, law enforcement remain undeterred from violating the next person’s civil rights—or killing them.

Without swift reform, more citizens will be subject to unchecked violence, terror, and death at the hands of those trusted to serve and protect.  A disproportionate number of these affected citizens are BIPOC. Qualified immunity needs reform now. Our constitution is at risk. Lives are at stake.

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle. His practice includes civil rights and wrongful death litigation. Emmerson Donnell is a senior at Oregon State University-Cascades, who has an interest in criminal justice reform.

Grey Area: Pretendians, Disenrollment & Indigeneity

As the Pretendianism movement rages on in 2021, a published comment from Kwantlen First Nation citizen Robert Jago caught my eye:

From the existence of these identity controversies, it might seem like the question of who is Indigenous is complex, hazy and impossible to understand.

However, Indigenous identity is no more confusing than getting a health card or a driver’s license. Each of the more than 600 recognized Indigenous governments in Canada have their own rules to determine who is a member. Most of them are codified, and some are even searchable online. Among real Indigenous people, there isn’t any grey area: it is clear who is Indigenous and who is not.

All the ambiguity on this issue comes from the Pretendians . . .

The 574 Indigenous nations in the U.S. also have their own citizenship rules.  Many issue citizenship cards, as suggested by Mr. Jago in his reference to health cards or driver’s licensure.

I do not know much about First Nations identity but I do know that assertions that Indigenous identity is “clear” and so-called Pretendians cause “all the ambiguity,” don’t translate in the United States.

In the U.S., Indigeneity is indeed complex and hazy; it is a grey area. 

That is because a great many Indigenous individuals who belong to their societies or nations are excluded by greed-addled, power-mongering tribal politicians.  Indigenous individuals are deprived of their Indigenous birthright. They are denied tribal citizenship. They do not get citizenship cards.

The ambiguity on this issue derives in great part from tribal politicians.

Tribal politicians for many tribes have imposed enrollment moratoria, most often to preserve gaming per capita wealth for existing tribal members, who in turn entrench as part of the politicians’ base and vote to keep them in office in perpetuity.  Those tribes no longer enroll their babies or children.

Tribal politicians for nearly 90 tribes have disenrolled their relatives, most often to also preserve gaming per capita wealth for existing tribal members, who again help keep the politicians in office.  The Eastern Band of Cherokee Indians are a prime example of disenrollment for gaming profit.

Tribal politicians for other tribes simply refuse to enroll their relatives due to racism or fascism.  For example, the Muscogee Creek Nation refuses to enroll their Black Freedmen relatives, in violation of MCN’s own 1866 Treaty with the United States and in derogation of basic human rights.

Tribal politicians engaged in such neo-colonialism have made Indigeneity hazy in the U.S. They have made tribal citizenship a grey area.  They are the pretenders.

Tribal citizenship could be clear, as with natural born American citizenship.  If you are born in the U.S., you belong here as an American. If you are born to a U.S. citizen, you belong here as an American. The Fourteenth Amendment and the United States Code quite clearly guarantee one’s birthright to belong.

But tribal citizenship is not clear. The fact of the matter is there are a great many Indigenous persons who belong, yet do not have a tribal citizenship card or are not tribally enrolled for inhumane and illegal reasons. There are few if any tribal laws that operate like the Fourteenth Amendment.

So if we are going to debate Indigeneity or cancel Pretendians, let’s also call out tribal politicians who deny their peoples’ birthright for power and profit.  That, however, requires courage that a great many of us lack. Because we fear our own persecution and disenrollment—or becoming the next “Pretendian.”

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

Gabe Galanda Teaches Indigenous Rights to Washington State Legislature

Today Gabe Galanda delivered a presentation to the Washington State Legislature titled, “Indian Law for the Washington State Legislator.” His remarks can now be seen on TVW.

At the invitation of House State Government & Tribal Relations Committee, Gabe educated the Legislators on Indigenous kinship, Treaty and territorial rights, consultation and consent.

Gabe’s slides are available here.

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

Book Review: Disenrollment Murder at Cedarville

“Mass Murder in California’s Empty Quarter – Tribal Treachery at the Cedarville Rancheria” by investigative journalist Ray A. March is a true-to-life account that at times echoes Tommy Orange’s fictional “There, There.”

The central characters in each story are displaced Indigenous persons who history has foisted into the streets of Oakland and Sacramento. Neither the fictional nor the real life characters deeply understand their cultures. As they grapple with the critical question “Who is an Indian?” and fear that they do not measure up, they fall into a deep confusion and dysfunction that irretrievably leads to chaos and murder.  

“Mass Murder in California's Empty Quarter” comes at a time when a growing number of tribal citizens are victim of mass disenrollment—a greed-addled political practice that strips them of their Indigenous birthright. At the time of the Cedarville mass murder the disenrollment epidemic was rampant, with related violence on the rise.  Family feuds over tribal political control, particularly of newfound gaming wealth, turned brutal, and subverted what is really means to be Indigenous.

March chronicles the intersection of murder and disenrollment in telling the horrific story of how, in 2014, a former Cedarville Rancheria chairwoman executed her brother, nephew, niece and the tribe’s administrator in plain sight, before they could evict her, deprive her of $80,000 in annual gaming per capita monies, and in effect disenroll her.

March’s book sounds as a much-needed wakeup call for anybody concerned about the state and future of Indigenous peoples in America.

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

Gabe Galanda Delivers "Issues in Tribal Citizenship" Lecture at Harvard

Today Gabe Galanda delivered a lecture titled,“Issues in Tribal Citizenship: Who's the 'Self' in Self-Governance?" at Harvard University’s Kennedy School.

Gabe addressed how the transmutation of Indigenous kinship societies and members into “nations” and “citizens,” as matters of federal law and policy since the late eighteenth century, contributes to Indigenous citizenship and identity crises for a great many Indigenous nations today.

He explained how numerous Indigenous nations:

• No longer include or enroll their babies or children as citizens;

• Disenroll elders, matriarchs, youth, and families through neo-colonial political processes;

• Dishonor and disturb, even exhume and DNA test, ancestors for the sake of disenrollment;

• Discriminate based on racial shades of “Indian blood” and fictional blood quantum percentages derived from debunked European inheritance and Eugenics theory; and

• Calculate tribal citizenship based on how much money is received—or could be received—in gaming “per capita” distributions. 

Gabe urged that traditional Indigenous kinship principles be infused into modern Indigenous nationhood citizenship laws and practices, including constitutions and membership ordinances.

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

California Indian Legal Services Officially Exits The Disenrollment Game

On December 5, 2020, the California Indian Legal Services (CILS) Board of Trustees passed a new policy that forbids the organization from assisting tribal governments in disenrollment or similar scorched-earth controversies.

CILS has a longstanding police of assisting “people with enrollment in particular Indian tribes because of potential professional conflicts of interest,” but that did not prevent it from helping California Indian politicians and in-house lawyers disenroll countless tribal members over the last couple decades. CILS most recently counseled Rincon Band of Luiseno Indians politicians in regard to a disenrollment purge in 2019, and also afforded counsel to tribal politicians like Cayuga Chief Clint Halftown in internecine tribal controversies.

In Dr. David Wilkins and Shelly Wilkins’ disenrollment exposition, Dismembered, CILS’s role in the disenrollment epidemic is discussed. They attribute the modern surge in disenrollment in part to “the powerful role played by lawyers who work for tribal governments, and particular organizations like the California Indian Legal Services entity.” CILS, the Wilkinses explain, “was cited numerous times by several disenrollees from California-based nations” as a disenrollment culprit.

But no more.

This policy reform helps realign CILS with its original mission of 1967 and helps prevent further extermination of California Indigenous peoples.

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

Corin La Pointe-Aitchison Elected Oregon State Bar Indian Law Section Co-Chair

Corin La Pointe-Aitchison has been elected by his peers to serve as the Co-Chair of the Oregon State Bar Indian Law Section.

Corin is an associate in the Seattle office of Galanda Broadman, PLLC. His practice focuses on litigation involving tribal governments and enterprises, and Indigenous civil rights. He is a Koyukon Athabaskan descendant whose family hails from Nulato, Alaska.

Anthony Broadman was also elected to an Oregon State Bar Indian Law Section leadership position. Anthony will serve as a Section Trustee. He is a past Chair of the Section.

NCAI Passes Historic Tribal Citizenship Protection Measure

Jamestown S’Klallam Chairmen Ron Allen, previously pictured at NCAI in 2019.

Last Monday President Fawn Sharp convened the National Congress of American Indians (NCAI) annual convention with a call for national conversation about equality and “what it means to just respect another human being, just basic civil and human rights."  

As its last measure of business on Friday, NCAI passed a measure to protect the Indigenous human and civil rights associated with Tribal citizenship for the first time in its seventy-six year history.

NCAI Resolution #PDX-20-001 affirms the inherent Tribal sovereign right of each Native Nation to decide who belongs as a citizen, and recognizes the Indigenous right to belong as a citizen free from discrimination. 

Both rights are recognized as human rights in the United Nations Declaration on the Rights of Indigenous Peoples. 

“The resolution powerfully affirms both sides of the tribal citizenship coin: The Indigenous human and civil right to belong and the inherent Tribal sovereign right to decide who belongs,” said Shannon O’Loughlin, a Choctaw Nation citizen and Director of the Association of American Indians Affairs (AAIA).

The resolution also creates an NCAI Tribal Citizenship Protection and Policy Task Force “to study, educate, and develop recommendations regarding issues of Indigenous tribal citizenship.”  The task force will empower NCAI to defend against federal and anti-Tribal assaults on Tribal citizenship. 

During NCAI committee deliberations, delegates cited the U.S. Supreme Court’s Baby Veronica decision as well as current litigation before the Fifth Circuit Court of Appeals, where the Indian Child Welfare Act has been undermined by attacks on Tribal citizenship blood quantum criteria.

The Trump administration’s treatment of Native Nations as racial groups under Medicaid rules and disregard of Tribal citizenship data as a basis for federal COVID-relief funding were also discussed as reasons for greater NCAI Tribal citizenship protection.

“Our Tribal citizens—the People—are the foundation of our sovereign nations,” said the resolution’s prime sponsor, Jamestown S’Klallam Tribal Chairman and former NCAI President Ron Allen.  “We must protect against outside attacks on Tribal citizenship, whether from the U.S. Congress, federal courts or anti-Indigenous groups.”

The Congress’ deliberations also touched on internal Tribal human and civil rights violations associated with disenrollment, which certain NCAI leaders denounced as inconsistent with Indigenous kinship tradition. Language was added to the resolution to prevent it from being used to undermine Tribal sovereignty and membership prerogative.

Joining Chairmen Allen in support of the resolution were former NCAI Presidents Brian Cladoosby, Susan Masten, and Mel Tonasket, and several Native Nations and national inter-tribal organizations.

Also supportive were the Jamestown and Port Gamble S’Klallam Tribes, Yakama Nation, and Spokane Tribe of Washington State; the Organized Village of Saxman in Alaska; Robinson Rancheria of California; Hualapai Tribe of Arizona; and Citizen Band of Potawatomi Nation in Oklahoma. 

Those Native Nations were joined by the Great Plains Chairmen’s Association and eastern and southern Alliance of Colonial Era Tribes. In addition to AAIA, the National Urban Indian Family Coalition, National Native American Bar Association (NNABA), National Native American Law Student Association, and Association of American Indian Physicians also endorsed the resolution.   

NNABA, which passed its own resolution of support, applauded NCAI for Resolution #PDX-20-001 and pledged “technical assistance and legal guidance to NCAI's Task Force upon request.”

O’Loughlin believes it is "imperative that Tribal leadership have open dialogue about protecting Tribal citizenship, nationhood and identity,” explaining: “It is time that our Nations be the example of what it looks like to the world to protect human rights and cultural sovereignty."

With Chairmen Allen hopeful that the resolution and forthcoming task force “will help prepare NCAI for frontline defense of Tribal citizenship and nationhood,” the national Indigenous human and civil rights conversation has commenced.

Gabriel S. Galanda is the Managing Lawyer of Galanda Broadman, PLLC, an Indigenous rights firm headquartered in Seattle. Gabe belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Tribes.

After 76 Years, Tribal Citizenship on National Indian Congress' Agenda

The 76 year-old National Congress of American Indians (NCAI) has never proclaimed its support of Tribal citizenship rights.  But that could change this week.

NCAI will convene its annual meeting on Monday and consider a Tribal citizenship protection Resolution, at the urging of a broad coalition of former NCAI Presidents, Native Nations, inter-Tribal organizations, and Indigenous leaders, educators, and advocates.

Past NCAI President Ron Allen proposes Resolution #PDX-20-001, which would affirm that “since time immemorial, each Tribal Nation retains the right to determine its own membership and each Indigenous individual enjoys the right to belong as a citizen of his or her Tribal Nation, according to its traditions and customs . . .” 

“Our tribal citizens—the People—are the foundation of our sovereign nations,” said Allen, the current Chairman of the Jamestown S’Klallam Tribe.  “We must protect against outside attacks on tribal citizenship, whether from the U.S. Congress, federal courts or anti-Indigenous groups.”

Tribal citizenship has increasingly come under attack by the federal government and anti-tribal groups. 

In the Baby Veronica case, U.S. Supreme Court Justice Samuel Alito derided Tribal belonging in the first line of his majority decision that undercut the Indian Child Welfare Act (ICWA), with this statement: “This case is about a little girl  . . . who is classified as an Indian because she is 1.2% (3/256) Cherokee.”  

Earlier this year the Goldwater Institute cited Tribal blood-quantum citizenship criteria to assail ICWA as an unconstitutional race-based law before the Fifth Circuit Court of Appeals in Brackeen v. Bernhardt. 

The Trump Administration likewise mischaracterized Tribal governmental health care beneficiaries as a racial class for Medicaid purposes, and also attempted to unilaterally stop issuing the federal Indian blood degree certifications that many Tribal governments utilize for citizenship purposes. 

The NCAI Resolution “will help prepare NCAI for frontline defense of tribal citizenship and nationhood,” Allen continued.  Former NCAI Presidents Brian Cladoosby, Susan Masten, and Mel Tonasket also support the Resolution, which as of this morning awaits referral by NCAI’s Executive Board to a committee of jurisdiction.

During yesterday’s NCAI Executive Board Meeting by Zoom, Affiliated Tribes of Northwest Indians President and Suquamish Chairman Leonard Forsman shared these words with the Board:

And Indian identity and citizenship are essential to Native nationhood. According to Dr. Joe Kalt of the Harvard Project on American Indian Economic Development: “Nothing is more central to any nation’s sovereignty than the power to determine who shall hold rights of citizenship and belonging,”   

Observing that Tribal leaders frequently contact the Harvard Project for advice regarding Tribal citizenship challenges, Dr. Kalt sees the Resolution as an opportunity “to bring much-needed focus to these critical matters” and to “strengthen the self-governing powers of all Indigenous nations.”

The Jamestown and Port Gamble S’Klallam Tribes, Yakama Nation, and Spokane Tribe of Washington State, the Organized Village of Saxman in Alaska, Robinson Rancheria of California, Hualapai Tribe of Arizona, and Citizen Band of Potawatomi Nation in Oklahoma are urging NCAI to adopt the Resolution.

Those western Native Nations are joined by the Great Plains Chairmen’s Association and eastern and southern Alliance of Colonial Era Tribes. 

The Association of American Indian Affairs (AAIA), National Urban Indian Family Coalition, National Native American Bar Association, National Native American Law Student Association, and Association of American Indian Physicians have also endorsed the Resolution, understanding the great extent to which Tribal citizenship undergirds Indigenous life, health, safety, culture, and law.

Believing it is “imperative that Tribal leadership have open dialogue about protecting Tribal citizenship, nationhood and identity,” Shannon O’Loughlin, a Choctaw citizen and AAIA’s Executive Director, remarked: “It is time that our Nations be the example of what it looks like to the world to protect human rights and cultural sovereignty.”