Pueblo Sovereignty Offers Tesla Loophole Around New Mexico Law

By Joe Sexton

Nanbé Owingeh, also known the Pueblo of Nambé, exercised its inherent sovereignty as a Native Nation to facilitate the opening of a Tesla sales, service, and delivery center near Santa Fe on the Pueblo’s lands, despite—or perhaps because of a—New Mexico law[1] banning the direct sales of motor vehicles by manufacturers. 

As of 2009, direct-to-consumer auto manufacturer sales were banned in nearly every state according to a U.S. Department of Justice analysis of those laws.  At the time, private challenges to those bans were largely unsuccessful. 

But the Department of Justice analysis concluded twelve years ago that state bans on manufacturers directly selling motor vehicles were archaic given the trajectory of auto commerce in the 21st century.  The author of that analysis forecasted that the industry itself would compel change, and states would change their laws along with the industry.  Today, Tesla has direct manufacturer-to-consumer auto sales locations in 24 states.  Yet several states beyond New Mexico maintain laws restricting auto manufacturer sales bans.

In 2019, two New Mexico state legislators introduced legislation, informally dubbed “the Tesla bill,” to do just that—allow “motor vehicle manufacturers to be licensed as motor vehicle dealers under certain conditions.”  The proposed legislation ultimately failed.  Tesla and the Pueblo of Nambé found a way around New Mexico’s laws by effectively moving direct Tesla commerce beyond the state’s reach and onto Pueblo lands. 

While the applicability of state laws and regulations on Indian country lands is complex and often times tied to court interpretations of federal laws pertaining to the status of specific parcels of lands within a tribe’s reservation, Native Nations can often leverage their sovereignty to facilitate economic growth despite state impediments.

Nambé Pueblo’s exciting move is a prime example.

[1] NMSA 57-16-5(V).

Indigenous Health Care Lawyer Corinne Sebren Joins Galanda Broadman

Corinne Sebren has joined Galanda Broadman PLLC as an Associate. Corinne joins the firm full-time after serving the past two years as a part-time Law Clerk. Her practice focuses on Indigenous health law and regulatory analysis, as well as litigation involving tribal governments and civil rights.

“Corinne brings a deep commitment to Indigenous health law and equity to our firm, and at a critical time,” said Gabriel S. Galanda, Managing Lawyer of Galanda Broadman. “We are excited to make her health care expertise and passion for justice available to our tribal clients.” 

Corinne is a 2021 graduate of the University of Washington School of Law where she served as Editor-in-Chief of Washington Law Review and received the Judge Eugene A. Wright Scholar Award. She is a former Legal Fellow of the Yakama Nation Office of Legal Counsel.

Prior to law school, Corinne utilized her Western Washington University degree in Behavioral Neuroscience in her role as the Advocacy Director and Vice Chair of the Board of Directors of the Whatcom County Chapter of the National Alliance on Mental Illness. She brings extensive non-profit management and healthcare administration experience to the firm in addition to her legal skills.

In her free time, Corinne enjoys bonfires, BBQs, yoga, mountain sports, and spending time in the Cascades with her family and her dog Lunchbox.

Corinne joins a growing bench of Galanda Broadman team members.  Harvard Law School alumnus Matt Slovin also joined the firm as an Associate this past July, and recent Oregon State University-Cascades graduate Emmerson Donnell will start work as a Litigation Assistant next month.

Galanda Broadman is an Indigenous rights law firm with nine lawyers and offices in Seattle and Yakima, Washington and Bend, Oregon. The firm is dedicated to advancing Indigenous Treaty, sovereignty, and human rights.

Gabe Galanda Named Among Best Lawyers in America for Fifteenth Straight Year

Gabe Galanda’s peers have named him to Best Lawyers in America for the fifteenth consecutive year.

Gabe is the managing lawyer at Galanda Broadman, PLLC, an Indigenous rights law firm headquartered in Seattle. He has also been dubbed a Super Lawyer by his peers from 2013 to 2021.

The American Bar Association named Gabe a Difference Maker in 2012. The Washington State Bar Association honored him with the Excellence in Diversity Award in 2014. The University Arizona College of Law awarded him the Professional Achievement Award and Western Washington University named him a Distinguished Alumnus, in 2018.

His practice focuses on complex, multi-party litigation and crisis management, representing Indigenous nations, businesses and citizens.

Gabe is skilled at defending Indigenous nations and business against legal attack by governmental or private parties, as well advocating for the human rights of Indigenous citizens. He advocates against tribal disenrollment and other Indigenous human rights abuse.  He also assists Indigenous clients with transactions and strategy related to various economic diversification initiatives.

Galanda Broadman Litigation Assistant Announcement

Galanda Broadman, PLLC, seeks to add a litigation assistant to its dynamic Indigenous rights practice.

With offices in Seattle and Yakima, Washington, and Bend, Oregon, Galanda Broadman is dedicated to advancing Indigenous Treaty and civil rights and business interests.  The firm represents Indigenous governments, businesses, and citizens in critical litigation, business and regulatory matters, especially in the areas of Treaty rights, tribal sovereignty, taxation, commerce, personal injury, and human/civil rights.

The firm seeks a litigation assistant with solid case management and trial experience for its Seattle office.  The position will largely be remote, although some in-office tasks may be required.  

The following criteria are strongly preferred: demonstrated experience; proven abilities under pressure; attention to detail; solid writing, proofreading and organization; tech savvy; critical, proactive, and creative thinking; strong work ethic; experience scheduling depositions and court hearings with opposing counsel, court reporters and court personnel; sound ethics and morals; and able to communicate clearly and in a professional manner in a fast-paced environment.

Position will also involve office managerial and administrative efforts.

Salary DOE. 

Qualified applicants should submit a cover letter tailored to this announcement, as well as a resume, and list of at least three educational and professional references, to Alice Hall, the firm’s Office Manager, at alice@galandabroadman.com, as soon as possible.

Four Galanda Broadman Indigenous Rights Lawyers Honored By Super Lawyers

Indigenous rights lawyers Gabe Galanda (Round Valley), Anthony Broadman, Ryan Dreveskracht, and Amber Penn-Roco (Chehalis) were each honored by Super Lawyers magazine for 2021.

Gabe and Anthony were named “Super Lawyers” and Ryan and Amber “Rising Stars,” all in the field of Native American Law.

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

With eight lawyers and offices in Seattle and Yakima, Washington and Bend, Oregon, the firm is dedicated to advancing and protecting Indigenous rights.

Matt Slovin Joins Galanda Broadman

Matt Slovin has joined Galanda Broadman PLLC as an Associate, focusing on litigation involving Indigenous civil rights and tribal governments and enterprises.

“Matt is among the best and brightest legal minds now wishing to serve Indigenous peoples,” said Gabriel S. Galanda, Managing Lawyer of Galanda Broadman. “We are ecstatic about his future.”

Matt graduated from Harvard Law School in 2019, where he served as co-Executive Articles Editor of the Harvard Journal on Legislation. He holds a Bachelor of Arts in Communication Studies from the University of Michigan, where he worked as Managing Editor of The Michigan Daily.

Matt joins the firm after clerking for the Hon. Lawrence E. Kahn of the U.S. District Court for the Northern District of New York. Prior to clerking, he was an Associate in the American Indian Law & Policy group at Akin Gump Strauss Hauer & Feld LLP in Washington, D.C.

Before law school, Matt was a sports reporter, covering the Detroit Tigers for Major League Baseball’s official website and the Tennessee Volunteers for The Tennessean. He has also written for The New York Times and USA TODAY.

Matt enjoys running, reading non-fiction, playing tennis, and watching college football.  

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.