Tribal Self-Determination at Stake in Sixth Circuit Health Care Appeal

By Corinne Sebren

A federal court in Michigan recently issued a decision that has the potential to reverse decades of progress made within the American Indian health care system. That is why more than 300 tribal governments from throughout the country have lined up to oppose the decision.

In Saginaw Chippewa Indian Tribe v. Blue Cross Blue Shield, Case No. 16-cv-10317 (E.D. Mich., Aug. 7, 2020), the Tribe sued Blue Cross Blue Shield of Michigan for failing to charge so-called Medicare Like Rates (MLR) for certain health care claims.

The district court ruled against the Tribe, incorrectly holding that only Purchased/Referred Care  (PRC) payments funded with Indian Health Service (IHS) funds qualified for MLR. PRC-authorized payments funded by the Tribe's self-insured plan did not qualify. As such, the Tribe was forced to pay Blue Cross millions of dollars more for health care services, than it should have.

The case is currently up on appeal in the Sixth Circuit, where those 300-plus tribal governments joined Saginaw Chippewa in requesting a reversal of the district court’s decision.

If affirmed, there are serious implications  for tribal governments that coordinate benefits with their own self-insured  plans and supplement their own health programs with tribal funds. However, there is hope that the appeal will result in a reversal of the lower court’s decision.

The district court made at least three serious errors:

First, the court looked to IHS's FAQs on MLR, interpreting  them to mean that the MLR regulations require both PRC program authorization and an IHS-funded PRC payment. This is wrong because basing its decision on the nonbinding FAQs violated statutory requirements of the Indian Self-Determination and Education Assistance Act.

Further, even if the FAQs were binding, they are more internally consistent with supporting tribal interests. Viewed holistically, the FAQs actually better support the Tribe’s interpretation than BCBSM’s, but the court opted to ignore them. The district court’s interpretation was also in error because PRC-authorized payments at MLR do not need to be solely funded by IHS.  

Second, the court misapplied Redding Rancheria v. Hargan, 296 F. Supp. 3d 256 (D.D.C. 2017), a case where a California federal court held that tribal self-insured plans can make payments at MLR if they are coordinated with and paid through the tribe’s PRC program.

The Saginaw Chippewa court believed Redding Rancheria paid for PRC solely with IHS funds, when in fact, the Rancheria used tribal self-insurance plan funds to supplement its PRC program and coordinate benefits.

Third, the court failed to properly apply the Indian canons of construction. To the extent the MLR regulations and associated statutes are ambiguous, they must be interpreted to support tribal interests.

The court’s decision in no way benefited tribal interests. Instead, if the decision sticks, tribal governments will have to either spend more resources to supplement their health care programs or reduce health care services altogether.

For those interested in tribally self-determined health care, Saginaw Chippewa v. BCBSM is one to watch. 

Corinne Sebren is a Law Clerk at Galanda Broadman, PLLC, an Indigenous rights law firm, and a 2021 graduate of the University of Washington School of Law. Corinne joins Galanda Broadman, PLLC, this Fall as an Associate Attorney after completing the bar exam. Her practice focuses on American Indian health law, litigation involving tribal governments and enterprises, and Indigenous civil rights.

Gabe Galanda to Moderate Indigeneity Discussion for Journalists

On June 10, Gabe Galanda will moderate a roundtable discussion sponsored by the Native American Journalists Association: “Authentic Authorship: Understanding Indigenous Claims and Connections.”

According to NAJA’s statement about the event:

This roundtable is intended to help non-Indigneous editors and producers understand the nuance and complexity of Indigenous connections to better examine Indigenous claims by sources and authors. Join moderator Gabe Galanda (Round Valley Indian Tribes), attorney at Galanda Broadman, to hear expert Indigenous perspectives on aspects of identity including citizenship, enrollment, descendancy, kinship, blood quantum, DNA testing, federal and state recognition, and fake tribes.

The roundtable panelists include:

• Twila Barnes (Cherokee Nation), Genealogist specializing in Cherokee genealogy and author of the “Thoughts from Polly’s Granddaughter” blog.

• Deb Krol (Xolon Salinan Tribe), Indigenous affairs reporter for The Arizona Republic, and award-winning journalist with an emphasis on Native, environmental and science issues, and travel.

• Kim Tallbear (Sisseton-Wahpeton Oyate), Canada Research Chair in Indigenous Peoples, Technoscience and Environment, Faculty of Native Studies, University of Alberta. She is the author of Native American DNA: Tribal Belonging and the False Promise of Genetic Science.

NAJA will host the roundtable and live Q&A at 2 pm PT via Zoom. Participants may register in advance here. After registering, attendees will receive a confirmation email with information about how to join the webinar.

The recording will also be available on the NAJA website and NAJA YouTube channel.

Chambers USA Recognizes Galanda Broadman's Excellence in Native American Law

Galanda Broadman, PLLC, has been recognized among the best Native American Law firms in the country by Chambers USA 2021. Gabe Galanda was also ranked among the best Native American Law practitioners in the latest edition.

Galanda Broadman is dedicated to advancing Indigenous legal rights and business interests and defending Indigenous human rights. From 2013 to 2021, Galanda Broadman, PLLC, was also named a “Best Law Firm” by U.S. News - Best Lawyers in the arena of Native American Law and Gaming Law. 

The firm, with eight lawyers and offices in Seattle and Yakima, Washington and Bend, Oregon, represents Tribal governments, businesses, and citizens in critical litigation, business and regulatory matters, especially in matters of Treaty rights, sovereignty, taxation, civil rights, and belonging.

The firm also represents Indigenous individuals in civil and human rights matters, especially in litigation against local, state, and federal police officers and jails for the loss of human life and against tribal politicians who abrogate Indigenous citizenship rights.

Chambers USA 2021 ranked more than 8,000 law firms and almost 22,000 lawyers across more than 2,000 practice areas/sectors on a state and national level.

Chambers and Partners determines its rankings of leading U.S. firms and attorneys through in-depth research and interviews with law firms, clients and third parties, and this year reviewed more than 10,000 submissions. Chambers assesses attorneys on attributes most valued by clients, including technical legal ability, professional conduct, client service, commercial astuteness, diligence, and commitment.

Galanda Broadman is honored to be considered among the best Native American Law firms in the country and grateful to all of our Tribal and Indigenous clients for allowing us the opportunity to earn that recognition.

Washington State Reforms "Felony Bar" Statute to Enhance Police Accountability

From left to right, Dani Bargala-Sanchez, Muckleshoot Councilman Donny Stevenson, Rose Davis, Gabe Galanda, and State Representative My-Linh Thai, after the signing of ESSB 5263

By Gabriel S. Galanda and Ryan Dreveskracht

Yesterday Governor Jay Inslee signed legislation into law that will help Indigenous and other victims of police violence uncover the truth and obtain justice. 

Governor Inslee signed ESSB 5263, the so-called “felony bar” reform bill, which was primarily sponsored by Senator David Frockt and advanced by the family of Renee Davis, Muckleshoot and Suquamish Tribes, ACLU of Washington, Washington State Association for Justice, and Washington Coalition for Police Accountability.

The Washington Legislature enacted RCW 4.24.420 as part of the 1986 tort reforms.  According to the Seattle Times, that law was passed “as part of a national tort reform movement . . . after a California high school student allegedly stealing spotlights from the roof of a school fell through a skylight and sued” the property owner.  The law was not intended to shield police departments from liability.

Since the enactment of the statute in Washington, however, municipalities have successfully asserted the defense to completely bar wrongful death or personal injury claims arising from the deadly or excessive use of force.  In other words, local governments and officers have evaded transparency and accountability.

For example, in 2019 the King County Superior Court dismissed a wrongful death action brought by the family of Renee Davis, a pregnant Muckleshoot mother who was killed by two King County Sheriff’s deputies during a welfare check in 2016. 

Less than a minute after their arrival and without any plan, the deputies rushed into Renee’s home, past two of Renee’s three children, and into her bedroom with guns drawn.  They found Renee lying in her bed, covered in a blanket up to her neck, and staring blankly at the door.  

Less than one minute later, they shot Renee dead.  She was armed—as the deputies were warned she might be—but the deputies’ accounts of whether and how she allegedly pointed it at them materially differ.  She slumped over and said, “It’s not even loaded,” before falling off the bed onto the floor.

The Superior Court dismissed the Davis family’s case pursuant to RCW 4.24.420, regretting that “this case illustrates in a number of respects some issues that you can tell I find somewhat troubling in terms of holes or gaps in the law.”  

Last summer, the Washington State Court of Appeals affirmed the trial court’s order also with regret, explaining “that Davis’s death is tragic” and echoing the trial court’s sentiment that the application of RCW 4.24.420 here is problematic because it precludes claims where law enforcement officers’ actions and training may have been unreasonable, given their knowledge that the individual they were confronting was suicidal and armed.”  The Court of Appeals later reversed itself and remanded the Davis family’s case for trial.

RCW 4.24.420 also contributed to the King County Superior Court’s recent dismissal of a lawsuit arising from the Seattle Police Department killing of Charleena Lyles, which has since also been overturned by the Washington State Court of Appeals and remanded for trial.

RCW 4.24.420 originally provided, in full: 

It is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence accusing the injury or death and the felony was a proximate cause of the injury or death.  However, nothing in this section shall affect a right of action under 42 U.S.C. Sec. 1983. 

As the original law specifically noted, an injured party may still bring federal civil rights claims against law enforcement officers who use deadly or excessive force notwithstanding felonious conduct.  Federal civil rights claims, however, require a higher standard for misconduct are subject to the prohibitive “qualified immunity” doctrine.

As illustrated by the Davis and Lyles cases, Washington trial courts have applied RCW 4.24.420 in a manner that has prevented juries from deciding cases that involve the deadly or excessive use of force, including in “they said, she’s dead” cases. Courts have dismissed cases against law enforcement agencies on summary judgment based on the original statute by impermissibly weighing evidence and making credibility determinations—all while no felony conviction exists and the only non-law enforcement witness is dead. 

Not only have juries been prevented from hearing the case and helping find the truth about officer-involved killings, but cases against the government have been dismissed where the involved officer’s testimony is the only direct evidence of alleged felonious conduct. 

This year, the State Legislature clarified the intent of RCW 4.24.420 by passing ESSB 5263.  The statute now provides in pertinent part:

(2) In an action arising out of law enforcement activities resulting in personal injury or death, it is a complete defense to the action that the finder of fact has determined beyond a reasonable doubt that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death, the commission of which was a proximate cause of the injury or death. 

(3) Nothing in this section shall affect a right of action under 42 U.S.C. Sec. 1983.

Law enforcement agencies must now prove beyond a reasonable doubt—against the highest standard of proof—that (1) an individual committed a felony and (2) the commission of that felony proximately caused their injury or death.  This means that barring the application of some other affirmative defense, each and every case will be allowed to proceed to trial for fact-finding and truth-telling, because the statute clarifies that this determination be made by juries, not judges on pretrial motions.

For those whose loved ones are taken at the hands of law enforcement, we hope the truth will now prevail and justice will be served. For our entire society, we hope others’ lives might now be spared from police violence.

Gabe Galanda and Ryan Dreveskracht are partners at Galanda Broadman, PLLC, an Indigenous rights firm headquartered in Seattle. On behalf of the Davis family, Gabe and Ryan thank Sens. David Frockt and Jaime Pedersen and Reps. Drew Hansen, Debra Lekanoff, My-Linh Thai, Tarra Simmons, Roger Goodman, John Lovick, as well as Katrina Johnson, Chairman Leonard Forsman, Amber Lewis, Dylan Doty, Alison Holcomb, Eric Gonzalez Alfaro, Nancy Talner, Larry Shannon, Kelli Carson, Michael Temple, Tiffany Cartwright, Leslie Cushman, Teri Rogers Kemp, and Mayor Jenny Durkan, for helping getting ESSB 5263 passed into law.

Gabe Galanda Delivers "Indigeneity Crisis" Lecture At His Alma Matter

Today Gabe Galanda delivered a lecture titled,“Indigeneity Crisis: Language and Law" at his alma mater, the University of Arizona College of Law.

Gabe reprised a recent lecture he gave at Harvard University, explaining the legal transmutation of Indigenous kinship societies and members into “tribes,” “Indians,” “nations,” and “citizens” and how it contributes to 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.

Washington DFW Pays Tulalip Fishermen $50,000 to Settle False Arrest Suit

Hazen Shopbell, Gabe Galanda, and Anthony Paul outside of the Skagit County Superior Court in 2019

Originally posted on Last Real Indians

The Washington State Department of Fish and Wildlife (WDFW) has paid Tulalip Tribal fishermen Hazen Shopbell and Anthony Paul $50,000 to settle their false arrest claims against the agency and its officers.

In June of 2016, Shopbell and Paul were arrested at the Everett Marina as they prepared to participate in the lucrative opening of Tulalip crab fishing season.  Over the prior year, the two Tulalip fishermen had developed a multi-million dollar wholesale distribution business within the Puget Sound tribal shellfish market that dominated non-tribal wholesale fish dealers.

Shopbell, who as a Tulalip youth dreamed of being a Treaty fisherman, later described the success of his and Paul’s efforts to a federal court judge: “We were able to bring Tribal representation to the docks. . . . [W]e increased the price per pound that Tulalip fishermen were paid for their salmon and crab—at times by several dollars per pound. It truly was that rising waters lifted all canoes.”

Unconvinced that Shopbell and Paul’s new business could be as successful as it was legally,  WDFW Detective Wendy Willette commenced a prolonged investigation of the Tulalip fishermen beginning in early 2016. According to her investigation notes she believed Shopbell and Paul were engaged in an illegal monopoly and “reverse racism” against non-tribal fish dealers.

Willette’s investigation culminated in her organizing and leading a multi-agency law enforcement raid of Shopbell and Paul’s homes and business on June 13, 2016. During the raid, three WDFW police officers arrested the two Tulalip fishermen and kept them handcuffed in the back of locked patrol vehicles for nearly two hours. 

Meanwhile Willette and other WDFW officers rifled through their homes for hours in the presence of their wives and young children, and confiscated various personal items like their children's iPads.

After those officers realized Shopbell and Paul should not have been arrested, and admitted it was due to a “miscommunication,” they released them. WDFW later returned what its officers had confiscated from their homes. 

But the damage had already been done. The high profile raid and arrests caused Tulalip and other tribal fishermen to fear selling shellfish to Shopbell and Paul’s business. Within months, their distribution business shuttered and the wholesale price of shellfish at Tulalip plummeted.

In 2018, Shopbell and Paul sued WDFW, Willette, and the other involved officers for federal and state civil rights violations before the U.S. District Court for the Western District of Washington. In retaliation, WDFW and Willette asked six separate federal, state, and local prosecutor’s offices to charge the fishermen with shellfish trafficking crimes. 

Willette partially succeeded. Both Pierce and Skagit County prosecuting attorneys brought felony trafficking charges against Shopbell and Paul, but judges dismissed all charges.

The Pierce County charges were dropped after the prosecutor discovered that WDFW withheld crucial evidence that supported “a complete defense in the case.” The Skagit County Superior Court noted in its dismissal that Willette improperly “shopped the prosecution.” 

Yet five years after Willette commenced her racially motivated investigation of Shopbell and Paul, they are still not totally free.

Last week the Washington Court of Appeals reversed the Skagit County court’s dismissal, ruling the judge did not make an express finding of WDFW’s bad faith. The appeals court sent the criminal charges back to the Skagit court for an evaluation of Willette’s bad faith. 

Shopbell and Paul received another unfavorable legal result in February, when the Western District of Washington dismissed their federal civil rights claims.  The federal court relied upon the controversial qualified immunity doctrine, which generally shields law enforcement officers from liability or accountability. That decision, however, left their state law claims intact. 

Rather than take Shopbell and Paul's remaining claims to trial in state court, WDFW settled them without admitting liability.

Before being dismissed from the federal court, Shopbell told the judge: “I have grown up listening to the stories of the Fish Wars and U.S. v. Washington. I have been taught by my Elders how the State of Washington and WDFW waged war against the Tulalip Tribes. . . . I know state police racism. We all do at Tulalip.”

Galanda Broadman, PLLC, represents Hazen Shopbell and Anthony Paul.

Oregon Legislature Considers Full Faith & Credit For Oregon Tribal Courts

By Corin La Pointe-Aitchison

The State of Oregon is set to pass historic legislation which will give tribal court orders full faith and credit in Oregon state courts.  Senate Bill 183 is the product of cooperation between the Oregon State Judiciary, tribal court judges from Oregon’s nine tribal governments, and the Oregon State Bar’s Indian Law Section.    

SB 183 has two primary functions.

The first is to give full faith and credit to judgments, decrees and orders from tribal courts. This will place tribal judiciaries on the same footing as the courts of other jurisdictions.

The second goal is to ensure proper recognition and enforcement of tribal protection orders for individuals to the extent they are outside the issuing tribe’s jurisdiction. 

Section 1 of SB 183 utilizes the framework of Oregon’s existing full faith and credit statute, ORS Chapter 24, by amending ORS 24.105 to include recognition of tribal judgments, decrees, and orders. The intent is to afford this recognition in the same manner that full faith and credit is afforded to federal and other state courts.

Sections 2 through 4 of SB 183 provide a new framework for enforcing tribal restraining orders in state courts. These sections would bring Oregon law in line with federal law and resolve a conflict between state and federal law that now exists. Under 18 U.S.C. § 2265, Oregon must already give full faith and credit to protection orders issued by any other state, Indian tribe, or territory. SB 183 aligns ORS 24.190 with that federal requirement. 

The bill is set for vote in the coming weeks and currently has no opposition in the Oregon State Legislature. 

Corin La Pointe-Aitchison is an Associate in Galanda Broadman’s Seattle office and the current Co-Chair of the Oregon State Bar Association Indian Law Section.. His practice focuses on litigation involving tribal governments and enterprises, and Indian civil rights. Corin is a Koyukon Athabaskan descendant whose family hails from Nulato, Alaska.

Gabe Galanda to Reprise Harvard Tribal Citizenship Lecture for Yale, Cornell Law Schools

In January Gabe Galanda delivered a lecture at Harvard University’s Kennedy School titled, “Issues in Tribal Citizenship: Who's the 'Self' in Self-Governance?" Gabe will reprise that lecture on March 16 for the Saginaw Chippewa Disenrollment Clinic jointly run by Yale Law School and Cornell Law 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. . . .

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.

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.