Before Howard Law School, Gabe Galanda Urges Indigenous Indigent Right to Counsel

Gabe Galanda joined Audra Wilson, the president and CEO of the Shriver Poverty Law Center, and Sybil Hadley, the General Counsel at the Southern Poverty Law Center, at the Seventh Annual C. Clyde Ferguson Symposium to discuss:

the complexities of economic support for legal representation and how that tends to manifest for all walks of life-- incarcerated individuals, marginalized communities, and those who need further support against the complex systems in our country that perpetuate poverty.

Gabe focused his remarks on disproportionate rates of Indigenous poverty, criminality, and incarceration and, therefore, the need for an Indigenous indigent right to counsel in Tribal Courts such as that guaranteed in non-tribal courts by the federal 6th Amendment. His slides are here.

Gabe Galanda is an Indigenous rights attorney and the managing lawyer at Galanda Broadman in Seattle. He belongs to the Round Valley Indian Tribes of California, descending from the Nomlaki and Concow Peoples.

In Historic Statement, BIA Pledges to Safeguard Indigenous Individuals' Rights

A weekend USA Today news feature regarding the United States’ recent intercession in the Nooksack housing rights calamity (.pdf here), includes the following historic statement from the BIA:

The federal government must protect the rights of individuals under federal law, including the Indian Civil Rights Act... BIA respects tribal sovereignty and supports tribal self-determination. Accordingly, we seek to work closely with our tribal partners to safeguard the rights of both tribes and individuals.

The BIA’s statement marks the second time the Biden administration has professed a commitment to protecting Indigenous individuals’ human rights from violation by Tribal governments, and a break from modern administrations that focused almost exclusively on supporting Tribal self-determination rights.

USA Today also highlights HUD “Secretary Marcia Fudge's October statement encouraging four Oklahoma tribes to accept descendants of Freedmen who once had been enslaved by the tribes.” Secretary Fudge consulted with Interior before making that statement.

Neither statement would have been issued without the guidance and support of Interior Secretary Deb Haaland or Assistant Secretary—Indian Affairs Bryan Newland. Indigenous representation does matter.

Both the BIA and HUD statements represent historic commitments by the United States to protect Indigenous individuals from domestic human rights abuse by Tribal governments. Both statements reflect the Trustee’s common-law moral trust responsibility to Tribal citizens and descendants. Both statements recognize that in the context of Indigenous human rights, Tribal sovereignty and self-determination are not absolute.

As explained by USA Today:

Galanda, a Seattle lawyer and member of the Round Valley Indian Tribes of California, said earlier Supreme Court decisions call for federal intervention under a "moral trust responsibility."

"The tension lies between tribal self-determination and Indigenous human rights protection in the form of federal diplomatic intercession," he said. "I think there have to be scenarios in which the Indigenous human rights violation is so atrocious and so threatening to an Indigenous community's existence that the (U.S. government) must exercise its moral trust responsibility."

I wholeheartedly applaud the Biden administration, particularly Secretary Haaland and ASIA Newland, for boldly professing a commitment to safeguard Indigenous individuals’ human rights.

Gabe Galanda is an Indigenous rights attorney and the managing lawyer at Galanda Broadman in Seattle. He belongs to the Round Valley Indian Tribes of California, descending from the Nomlaki and Concow Peoples.

The Nooksack 306: "We still belong at Nooksack. We will always belong at Nooksack."

Guest Column By The Nooksack 306

Who are we—the Nooksack 306?

We are 306 Nooksack Indigenous relatives who have faced persecution by politicians running the Nooksack Indian Tribe in Whatcom County of Washington State, since 2012.

While Nooksack politicians claim we were telephonically disenrolled in November 2016, the U.S. Interior Department invalidated the disenrollment that month and U.S. Department of Justice later declared that those politicians "endeavored to unilaterally declare members of this minority group 'disenrolled' using a sham hearing process while also systematically depriving them of the means to challenge the actions . . . in the tribal judicial system." We were also disenrolled despite several Nooksack tribal court injunction orders.

We have never been legally disenrolled. We still belong at Nooksack. We will always belong at Nooksack.

What is disenrollment and why is it destructive?

Disenrollment is a non-traditional, neocolonial tribal practice that is intended to keep tribal politicians in power and concentrate a tribe's wealth within their political base by removing enrolled citizens of their tribal nations who are seen as a "threat" to said power and wealth hoarding. This would be equivalent to the United States revoking your American citizenship because a political leader feels they can gain more power if you don't have rights. Read more about how disenrollment is problematic by clicking here.

Are we the only Indigenous peoples experiencing disenrollment?

No.  There are over 90 U.S.-recognized tribes (15% of all recognized tribes) who have disenrolled as many as 10,000 tribal citizens for power and profit. Disenrollment is allowed to occur because federal and state courts will generally not assert jurisdiction over the deprivation of an Indigenous person's civil rights. As at Nooksack, tribal courts are often beholden to the politicians who are causing the persecution and disenrollment. 

Why are we being persecuted?
Nooksack politicians argue that our ancestor, Annie George, is not Nooksack and her daughters were wrongly enrolled.  Annie George is the daughter of Matsqui, the Chief of the Nooksack Village of Matsqui in British Columbia. The Tribe recognizes Matsqui as a “Nooksack Place Name” in our traditional language Lhéchalosem on its website. 

Nooksack people hail from southern British Columbia and northern Washington State.  A Nooksack chief signed a U.S. Indian Treaty in 1855 but the courts treated us as Canadian Indigenous persons until 1973, when the Tribe was recognized by the U.S.  Our Elders were enrolled in the 1980s. Disenrollment came 40 years later after individuals outside the George lineage felt we were a threat to their political power.

In 2013, Tribal politicians launched a successful political campaign to amend Nooksack constitution in order to eliminate us. They also fired the Chief Judge of the Nooksack Tribal Court who had ruled against them, and installed their white lawyer Ray Dodge as the new Chief Judge to make sure no lawsuit we might file in Tribal Court to prevent our disenrollment would ever be heard.

We are believed to be one of the largest Indigenous families ever subject to disenrollment in the United States. To learn more about our disenrollment, please read this article by The New York Times.  

What issues do we face as disenrolled Indigenous peoples?

Without enrollment, we are denied access to voting, health services, fishing rights, pensions, and scholarship opportunities. We cannot take part in cultural or political activities at Nooksack. Our disenrollment has also led to 63 of us facing eviction from our homes that we own under federally funded home ownership programs.

What changes do we hope to see happen?

We hope that Nooksack politicians will do the right thing and stop this decade-long injustice. If they continue to refuse, we hope that - with our attorney Gabe Galanda - the federal government will determine this to be a civil rights violation. We have also called upon the United Nations to declare this an international human rights atrocity.  We hope that the deprivation of any Indigenous person's civil rights will be prevented.

What can outsiders do to support us?

Allies are invited to follow our Twitter (@Nooksack306) and Facebook (The Nooksack 306). Sharing and retweeting our content helps others learn about us and creates further pressure on the Nooksack tribal government to do the right thing. We also ask for donations to our GoFundMe to support the 63 of us who are being evicted from our homes at Nooksack.

Matt Slovin Explains Cardrooms' New Suit Against Washington Tribal Sports Betting

Maverick Gaming LLC, the owner-operator of 19 Washington cardrooms, sued state and federal officials in D.C. federal court Tuesday, alleging violations of the Indian Gaming Regulatory Act (“IGRA”) and equal protection.

Specifically, Maverick argues that the State of Washington’s gaming compacts illegally give tribes a monopoly over roulette, craps, and sports betting—forms of what IGRA refers to as “class III gaming.” In 2021, the State and 16 tribes amended their compacts to authorize sports betting.

IGRA permits tribes to engage in class III gaming only if “such activities are . . . located in a State that permits such gaming for any purpose by any person, organization, or entity, and conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State . . . that is in effect.”

The crux of Maverick’s argument is that tribes cannot engage in roulette, craps, and sports betting because: (1) Washington does not “permit[] such gaming . . . by any person, organization, or entity” as non-tribal actors cannot participate; and (2) the compact amendments permitting sports betting violate IGRA and other federal law.

 Whether Class III Gaming by Washington Tribes Violates IGRA Because the State Does Not “permit[] such gaming . . . by any person, organization, or entity”

Maverick’s first argument is that the tribes’ “monopoly” on roulette, craps, and sports betting violates IGRA because Washington does not “permit[] such gaming . . . by any person, organization, or entity.” 25 U.S.C. § 2710(d)(1)(B).

Washington law allows tribes to compact to conduct sports wagering. See RCW 9.46.0364. But Maverick alleges that the State criminally prohibits non-tribal entities from participating in sports wagering.

Courts have applied different tests in determining whether certain state gaming activities violate IGRA.

In interpreting § 2710(d)(1)(B), the Eighth Circuit Court of Appeals asked whether state “gaming law is prohibitory or regulatory in nature.” U.S. v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 366 (8th Cir. 1990). If state law prohibits “gambling in general” and the particular activity in question, it violates IGRA to allow a tribe to participate in it. Id. at 368. But if state law merely regulates gambling and the specific activity, there is no IGRA violation. Id. The Second Circuit Court of Appeals has adopted the same test. See Mashantucket Pequot Tribe v. State of Conn., 913 F.2d 1024, 1032 (2d Cir. 1990).

However, the Ninth Circuit Court of Appeals found the statute ambiguous and resolved the ambiguity in favor of tribes under a canon of construction. See Artichoke Joe’s California Grand Casino v. Norton, 353 F.3d 712, 731 (9th Cir. 2003). Thus, the Ninth Circuit held that a state “permits” class III gaming under IGRA even if those activities are only legalized for tribes. Id.

If the U.S. District Court for the District of Columbia adopts the prohibition-regulation dichotomy here, it is possible a judge would find sports betting by tribes in Washington violates IGRA; Maverick has pointed to state law that it reads as prohibiting class III gaming by non-tribal entities. See RCW 9.46.222.

Whether the Compact Amendments Allowing Sports Betting Violate IGRA and Other Federal Law

Maverick alleges the Secretary of the Interior was obligated to disapprove the 2021 compact amendments, which allow tribes to engage in sports betting, for three reasons.

First, as discussed above, Maverick argues the amendments violate IGRA because they purport to authorize class III gaming in a state—Washington—that does not allow non-tribal actors to participate.

Second, Maverick argues the amendments run afoul of the Constitution’s equal protection guarantee through discrimination on the basis of race and ancestry.

Third, Maverick argues that the compact amendments violate the Tenth Amendment because the federal government, through IGRA, required states to negotiate compacts with tribes.

Through the lawsuit, Maverick seeks an order declaring that the compacts and compact amendments violate IGRA, the equal protection clause, the Tenth Amendment, and other federal law.

Matt Slovin is an Associate with Galanda Broadman PLLC. and Harvard Law School graduate. He is a former sports reporter, for MLB.com and The (Nashville) Tennessean.

Governor Inslee Appoints Ryan Dreveskracht to State Criminal Justice Training Commission

On December 14, 2021, Governor Inslee appointed Ryan Dreveskracht to serve as the a Board Member on the Washington State Criminal Justice Training Commission (“CJTC”).

The CJTC was created in 1974 to establish standards and provide training to criminal justice professionals, including peace officers, local corrections officer and to certify, and when necessary de-certify, peace officers. Washington State is one of only a few states that not only establishes training standards, but also provides Basic Training for Peace Officers and Corrections Officers. This unique model ensures that every local officer has consistent and high quality training guided by the CJTC.

On the CJTC Board, Ryan will preside over law enforcement practices and accountability, as provided in RCW 43.101.030(1)(f).

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle. His practice includes civil rights and wrongful death litigation. He can be reached at (206) 909-3842 or ryan@galandabroadman.com.

Gabe Galanda, Anthony Broadman to Co-Chair 19th Annual Northwest Gaming Law Summit

Gabe Galanda and Anthony Broadman will co-chair the 19th Annual Northwest Gaming Law Summit at the Washington Athletic Club in Seattle on December 9 and 10, 2021.

The Summit, which remains the most important gaming legal education event in the country, attracts a veritable “who’s who” in the tribal and commercial gaming industries.

Agenda For Thursday, December 9, 2021

9:00 PDT

INTRODUCTION AND OVERVIEW

Anthony S. Broadman, Program Co-Chair
Galanda Broadman PLLC

Gabriel S. Galanda, Program Co-Chair
Galanda Broadman PLLC

David A. Malone, Program Co-Chair
(Live, via Webcast)
Miller Malone & Tellefson

9:10

NATIONAL INDIAN GAMING LITIGATION UPDATE

Review of the major cases decided over the past year regarding the interpretation and implementation of the Indian Gaming Regulatory Act and tribal/state compacts governing tribal gaming operations.

Scott D. Crowell
Crowell Law Office – Tribal Advocacy Group PLLC

9:45

INDIAN GAMING FEDERAL LEGISLATIVE UPDATE

Review of major federal legislative and policy developments over the last year that impact tribal governments and gaming enterprises.

Joshua Clause
Clause Law PLLC

Aurene M. Martin, President
Spirit Rock Consulting, Inc.

10:45

BREAK

11:00

NORTHWEST GAMING STATE LEGISLATIVE UPDATE

Review of major Washington and Oregon state legislative and policy developments over the last year that impact tribal governments and gaming enterprises.

Anthony S. Broadman, Moderator
Galanda Broadman PLLC

Rebecca George, Executive Director
Washington Indian Gaming Association

Justin Martin
Perseverance Strategies, Inc.

Anna Richter Taylor
(Live, via Webcast)
ART Public Affairs

12:15

MIDDAY BREAK

1:30

SECTION 20 LITIGATION & ADMINISTRATIVE UPDATE

Review of cases decided over the past year regarding the interpretation and implementation of Section 20 of the Indian Gaming Regulatory Act.

John A. Maier
Maier Pfeffer Kim Geary & Cohen LLP

Scott Wheat
Wheat Law Offices

2:30

SPECIAL KEYNOTE PRESENTATION: THE STATE OF FEDERAL/TRIBAL GAMING RELATIONS

Update on the Department of the Interior's Federal policy agenda for Indian Country

Bryan Newland, Assistant Secretary
Indian Affairs, U.S. Department of the Interior

3:00

BREAK

3:15

SPECIAL KEYNOTE PRESENTATION: INDIAN GAMING IN 2022

Ernest L. Stevens, Jr., Chairman
National Indian Gaming Association

3:45

INDIAN GAMING POST-PANDEMIC: TRIBAL EXECUTIVE INSIGHTS

Review of how tribal governments and gaming enterprises have responded to the COVID-19 pandemic and adapted for the future.

Rebecca George, Executive Director, Moderator
Washington Indian Gaming Association

Hon. W. Ron Allen, Chairman
Washington Indian Gaming Association

Junior Maldonado, Executive Director
Gaming Operations, Muckleshoot Casino Resort

Laura Penney, Chief Executive Officer
Coeur d’Alene Casino Resort Hotel

5:00

ADJOURN

Agenda For Friday, December 10, 2021

9:00 PDT

INTRODUCTION AND OVERVIEW

Anthony S. Broadman, Program Co-Chair
Galanda Broadman PLLC

Gabriel S. Galanda, Program Co-Chair
Galanda Broadman PLLC

David A. Malone, Program Co-Chair
(Live, via Webcast)
Miller Malone & Tellefson

9:10

SPORTS COMPACT LITIGATION

Review of a recent Florida case and discussion of the potential future application of the Florida model in the Pacific Northwest.

David A. Malone, Moderator
(Live, via Webcast)
Miller Malone & Tellefson

Marc W. Dunbar
(Live, via Webcast)
Dean Mead
Tallahassee, FL

Robert M. Jarvis
(Live, via Webcast)
Professor of Law
Nova Southeastern University
Fort Lauderdale, FL

10:15

BREAK

10:30

SPORTS BETTING – A PANEL DISCUSSION

Review of “brick and mortar” models such as Washington State’s new compact amendments; “mobile” models as in Florida and Colorado; state law-based models as in Michigan, Arizona and Connecticut, and California’s competing ballot measures.

Scott Wheat, Moderator
Wheat Law Offices

Steve M. Bodmer, General Counsel
Pechanga Band of Luiseño Indians

Scott D. Crowell
Crowell Law Office – Tribal Advocacy Group PLLC

Christine M. Masse
Miller Nash LLP

12:00

ADJOURN

Matt Slovin Named to Harvard Law School Alumni Board

Matt Slovin, an Associate for Galanda Broadman PLLC, was recently named to the Executive Board of the Harvard Law School Association's Recent Graduates Network.

The Recent Graduates Network helps to keep those who graduated in the past 10 years connected to the school and its affiliates.

Slovin is a 2019 graduate of Harvard Law School. He will serve a two-year term as co-communications chair.

Matt Slovin is an Associate at Galanda Broadman, PLLC, an Indigenous rights law firm. His practice focuses on Indian civil rights litigation, as well as cases involving tribal governments and enterprises.

Federal Infrastructure Bill Provides $3 Billion for Tribal Transportation

By Matt Slovin

The Infrastructure Investment and Jobs Act (IIJA), which President Joe Biden signed into law on November 15, authorizes approximately $3 billion in spending for the tribal transportation program over the next five fiscal years.

 Under the pre-existing tribal transportation program, the federal government maintains a “comprehensive national inventory of tribal transportation facilities that are eligible for assistance.” 23 U.S.C. § 202(b)(1)(A). The program’s purpose is “to provide safe and adequate transportation and public road access to and within Indian reservations, Indian lands, and Alaska Native Village communities.” See U.S. Department of Transportation, Office of Tribal Transportation, https://highways.dot.gov/federal-lands/programs-tribal.

Of the $3 billion in tribal transportation spending, $100 million is allocated toward tribal transportation facility bridges. An additional $825 million is available under the same program in supplemental appropriations. Under Section 14004 of the IIJA, the bridge-specific funds are to be used:

(1) to carry out any planning, design, engineering, pre-construction, construction, and inspection of new or replacement tribal transportation facility bridges;

(2) to replace, rehabilitate seismically retrofit, paint, apply calcium magnesium acetate, sodium acetate/formate, or other environmentally acceptable, minimally corrosive anti-icing and deicing composition; or

(3) to implement any countermeasure for tribal transportation facility bridges classified as in poor condition, having a low load capacity, or needing geometric improvements, including multiple-pipe culverts.

Under the new law, the Bureau of Indian Affairs will receive a $270 million appropriation for its road maintenance program. The IIJA also raises the percentage of tribal transportation funds available to tribal governments applying for highway safety improvement projects from 2 to 4 percent.

The new law sets aside $9 million of the tribal transportation dollars to carry out the Tribal High Priority Projects Program, which helps repair or reconstruct eligible tribal transportation facilities. The IIJA also contains a separate, $30 million annual appropriation toward the Tribal High Priority Projects Program.   

The IIJA creates the Office of Tribal Government Affairs within the Department of Transportation, to be led by an Assistant Secretary for Tribal Government Affairs. It also contemplates a consultation process between the Secretary of Transportation, Indian tribes, Alaska Native villages, and state transportation departments to develop best practices for sharing and analyzing on-reservation crash data, as well as to create a standardized form to implement those best practices.

Finally, the IIJA requires the Secretary of Transportation to allocate at least one seat on a newly formed working group on covered transportation resources to tribal governments.

Matt Slovin is an Associate at Galanda Broadman, PLLC, an Indigenous rights law firm. His practice focuses on Indian civil rights litigation, as well as cases involving tribal governments and enterprises.

UPDATED Dec. 21: Tribal Employers Conspicuously Absent from New Federal Vaccine Mandates

By Corinne Sebren

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) concurrently published new emergency regulations designed to minimize the risk of COVID-19 transmission in the workplace. Yet, despite indications from Biden Administration officials that tribal employers, including tribal business enterprises, would be expressly included in the final versions of the rules, they were not.  

Because earlier vaccine mandates governing federal employees and contractors expressly exempted Tribes and neither the OSHA ETS nor the CMS IFR do, tribal employers covered by these rules should make every effort to comply while staying current with any updates.  

A brief summary of each rule and its applicability to tribal employers follows:

OSHA’s rule, issued as an Emergency Temporary Standard (ETS), applies to businesses with 100 or more employees. It requires employees to be either fully vaccinated, or wear face coverings and undergo weekly COVID-19 testing. The OSHA ETS also contains detailed provisions for employee notice, paid leave, acceptable testing, return-to-work criteria, and documentation requirements. Employers are not required to pay for testing under the rule. The OSHA ETS is a law of general applicability and is completely silent as to its application to Tribes. Accordingly, the OSHA ETS almost certainly applies to non-governmental tribal enterprises that employ 100 or more workers. 

CMS’s rule, issued as an Interim Final Rule (IFR), applies to all workers at covered Medicare- and Medicaid-regulated facilities. The CMS IFR requires employees to be vaccinated for COVID-19 by January 4, 2022, unless they are deemed exempt for medical or religious reasons. Employees cannot opt for testing in lieu of vaccinations under this rule. The CMS IFR expressly applies to IHS and any provider participating in Medicare or Medicaid programs. Accordingly, the CMS IFR applies to all workers regardless of clinical responsibility or patient contact at Medicare-certified tribal health care facilities that operate under an ISDEAA compact/contract. 

Of note, last Friday the Fifth Circuit issued a temporary stay on the OSHA ETS in response to a lawsuit. This lawsuit will move very quickly and if courts rule in favor of OSHA, the original deadlines could remain in place. Therefore, covered tribal employers should consider moving forward as though the rule is currently in effect. CMS’s rule is not part of this lawsuit and is currently in effect.

In sum, the OSHA ETS and CMS IFR both apply to certain tribal employers. Both of these pending rules are open for public comment: OSHA’s comment period ends on December 6, 2021, and the CMS’s comment period ends on January 4, 2022. Galanda Broadman PLLC can assist tribal employers with compliance or drafting public comments. Please contact us if interested. 

UPDATE:

CMS Mandate

On December 15, 2021, the 5th Circuit Court of Appeals lifted the nationwide injunction on the CMS mandate. The 5th Circuit did not feel the stay's application to the entire country was appropriate, but it did leave the stay in place for the 14 states that brought the original lawsuit, which is still being litigated. A separate lawsuit in the 8th Circuit (originating in Missouri) is also ongoing and the injunction is still in effect for the 10 states that brought that suit. Finally, an injunction is in place in Texas while litigation is pending.

The 25 states where the CMS mandate is currently on hold due to injunctions and pending litigation are: Texas, Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire. For all other states, the CMS mandate is currently in effect.

Although the mandate is back in effect for about half of the country, CMS stated earlier this month that it will not enforce the mandate while injunctions are being litigated. As of the writing of this update, CMS has not walked that statement back, nor has it issued new deadlines for enforcement. Because there are still injunctions in place and litigation is ongoing, no enforcement is imminent. This could change at any time. The litigation over the CMS mandate is expected to reach the U.S. Supreme Court.

With regard to the rule's application in Indian country, CMS issued several clarifications over a series of All Tribes calls and meetings with regional Indian Health Boards. For example, it is now clear that only Medicare-certified entities (those entities with Conditions of Participation or CoPs) are covered, whereas initially it was expected that Medicaid-certified facilities would be covered as well. Moreover, CMS has stated that standalone CLIA-certified labs will not be covered by the rule. Clarifications notwithstanding, the CMS mandate as it applies to tribal health programs remains difficult to interpret. There are significant issues for tribal health programs to consider, such as the rule's application to vendors and tribal government employees who provide program support. Please contact corinne@galandabroadman.com with questions.

OSHA Mandate

On December 17, 2021, the Sixth Circuit Court of Appeals removed the stay of OSHA's Emergency Temporary Standard (ETS). OSHA has since posted new compliance dates in a statement released on its website. Covered employers must now comply with the provisions of the ETS by January 10, 2022. If an employer opts to permit employees to test in lieu of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022.

Since the Sixth Circuit's ruling, several plaintiffs have already filed emergency applications with the U.S. Supreme Court for a stay of the ETS. The applications are being reviewed by Justice Brett Kavanaugh. Justice Kavanaugh can either issue the stay pending review by the full Court, or he can refer the decision to the full Court for review. It is likely the Court will review these emergency applications quickly to stay ahead of the new January 10, 2022, compliance date.

Finally, with respect to application of the ETS in Indian country, though OSHA indicated back in November that it would consider suspending enforcement of the rule pending tribal consultation, the agency did not issue anything in writing to that effect. It is likely that OSHA did not see the need to suspend enforcement for the Tribes once the Fifth Circuit injunction, which suspended enforcement of the rule nationally, went into place. OSHA's December 17 statement issuing the new compliance and enforcement dates did not address tribal consultation or indicate that tribal enterprises would be exempt. Unless new guidance is released suggesting otherwise, the ETS is currently in effect and non-governmental tribal enterprises that employ 100 or more workers should assume they are expected to comply.

Corinne Sebren is an Associate Attorney at Galanda Broadman, PLLC, an Indigenous rights law firm. Her practice focuses on Indigenous health law, litigation involving tribal governments and enterprises, and civil rights. Many thanks to Emmerson Donnell for editing this post.

Gray v. City of Forks

A federal civil rights lawsuit brought by the estate and mother of a 23 year-old Quileute woman who took her own life while in the care of the Forks jail after she was sexually accosted and tormented by a jail guard.