The Ninth Circuit (Rightly) Splits from the D.C. Circuit in San Carlos Apache Tribe v. Becerra

Yesterday, in San Carlos Apache Tribe v. Becerra, the Ninth Circuit held the Indian Self-Determination Education and Assistance Act (ISDEAA) requires payment of contract support costs (CSC) for all activities that are required for compliance with the Tribe’s ISDEAA contract/compact “includ[ing] the third-party-revenue-funded portions of the program.” In so holding, the lower court’s dismissal of the case was reversed and remanded for further proceedings.

San Carlos Apache’s holding departs from the only other circuit court to have considered this issue. In Swinomish Indian Tribal Cmty. v. Becerra, the D.C. Circuit held that health care programs funded by third-party revenue were not eligible for CSC funds. 993 F.3d 917 (D.C. Cir. 2021). The Swinomish Court’s primary reasoning was that the Tribe’s third-party revenue only funded health care programs considered extra, or additional to, those necessary for the contract.

But San Carlos Apache methodically dismantles Swinomish. First, the San Carlos Apache Court explains that because the ISDEAA requires tribes to spend their third-party revenue on healthcare services, “the ‘cost of complying’ with a contract between IHS and a tribe includes the cost of conducting those additional activities.” Second, the Court explains that “[b]ecause the statutory language is ambiguous, the Indian canon applies, and the language must be construed in favor of the Tribe.”

Though this opinion is a major win for tribal health care programs—particularly those situated within the Ninth Circuit—the law in most of the country is even more unsettled as a result of the circuit split. San Carlos Apache provides a careful analysis of a complicated issue with far-reaching consequences for tribal communities. Other circuits should look to its example rather than to the example set by Swinomish. In the meantime, this case is one to watch.

 Corinne Sebren is an associate with Galanda Broadman. Her practice focuses on civil rights, Indigenous health law, regulatory analysis, and complex litigation.

Ryan Dreveskracht Teaches Qualified Immunity to South Dakota Law Students

Last Tuesday, Ryan Dreveskracht presented to a Federal Jurisdiction class at the University of South Dakota Knudson School Of Law on the history and implications of “qualified immunity,” a legal doctrine that acts to shield law enforcement officers from suit—even when their actions violate peoples’ constitutional rights.

Ryan, who describes taking on tricky cases that deal with qualified immunity as his legal “passion project,” shared his own experiences litigating such cases in federal court with the engaged law students.

Over the years, Ryan has successfully litigated several high-profile cases in which clients have had their constitutional rights violated and even lost their life at the hands of law enforcement. In all of these cases, the protections afforded to law enforcement under the qualified immunity doctrine have been a major obstacle to seeking justice. Despite the challenges, Ryan has had great success in this area of litigation, making him a highly regarded authority on the subject.

In addition to speaking about his own cases, Ryan shared his expertise on the many issues that arise when law enforcement is allowed to act with impunity. He also went into why Indigenous Americans are disproportionately affected by this doctrine, as they are the most likely group to suffer violence at the hands of police.

To learn more about qualified immunity, its history and implications, read Ryan’s article in Trial News “The Uncertain Past, Present, and Future of Qualified Immunity”

Ryan is a partner at Galanda Broadman, whose practice focuses on defending individuals’ constitutional rights and bringing police misconduct and wrongful death cases on local and national levels. On December 14, 2021, Governor Inslee appointed Ryan to serve a six-year term as Board Member on the Washington State Criminal Justice Training Commission. Ryan is also a member of the American Civil Liberties Union of Washington’s Legal Committee, which serves as legal counsel to ACLU-WA and provides advice to the staff in the strategic development and execution of litigation to advance the ACLU’s civil liberties and civil rights agenda. In addition, Ryan is a member of the Task Force on Race and Washington’s Criminal Justice System, which provides research and analysis to the Washington State Supreme Court regarding disproportionalities in the criminal justice system.

Gabe Galanda to Deliver CRT Lecture at Berkeley Law School

On November 17 at 12:50 PM Pacific, Gabe Galanda will deliver a lecture at Berkeley Law School titled, “Deploying CRT to Revive Indian Civil Rights & Renew Indigenous Kinship Rules.”

Through a Critical Race Theory lens, Gabe will the legal origins of modern Tribal neocolonial practices, including blood quantum, enrollment moratoria, disenrollment, and per-capitalism.

He will explain how Indigenous kinship rules have been replaced by federal Indian rights since the late 18th Century, and how those rights have been decimated by the courts since the U.S. Supreme Court's Santa Clara Pueblo v. Martinez decision in 1978.

Gabe will call for the renewal of Indigenous kinship rules systems as a way to protect and sustain Tribal nationhood and Indigenous belonging.

You can watch his lecture online via Zoom here: tinyurl.com/GGxBerk

Gabe Galanda to Talk Treaty Rights to King Co. District Court Judges

On Thursday, Gabe Galanda will present a special program to the King County District Court Judges titled, "State v. Shopbell/Paul: Countervailing Law Enforcement Bias: Saying the Quiet Parts Out Loud." Gabe will discuss a case involving two Tulalip fishermen who were charged and prosecuted by the Washington State Dept. of Fish & Wildlife. He and Summit Law Group's David Smith were able to secure a dismissal of five felony charges against both fishermen, pursuant to the 1855 Treaty of Point Elliott.

Galanda Broadman Named "Best Firm" in Native American & Gaming Law for Eleventh Year

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

According to U.S. News - Best Lawyers, the firm's national ranking was determined through the firm's overall evaluation, which was derived from a combination of Galanda Broadman’s “clients' impressive feedback” and “the high regard that lawyers in other firms in the same practice area have for [the] firm.” 

Galanda Broadman is dedicated to advancing Indigenous legal rights and business interests and defending Indigenous human rights.

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

Mothers for Police Accountability Honors Gabe Galanda with Thurgood Marshall Award

On November 10, Gabe Galanda will receive the Thurgood Marshall Award from Mothers for Police Accountability, a group that has worked to improve the police and reduce gun violence in Seattle since 1990.  

Gabe will be honored for his “tireless work” on behalf of Indigenous Americans and others affected by police violence.

The Indigenous Home Ownership Shell Game

Nooksack federal Low Income Housing Tax Credit homes

As HUD reported in 2019, the unique circumstances of Indian country—“remoteness, lack of infrastructure, and complex legal and other constraints related to land ownership”—make home ownership very difficult.  With Indigenous home ownership rates drastically below national averages, the federal government has endeavored to help bring home buyership opportunities to Indian country.

In 2001, Congress amended the federal Low Income Housing Tax Credit (LIHTC) provision of the Internal Revenue Code (Section 42) to make it an eventual home ownership program. In the years that followed, the promise of home ownership was extended to tribal members throughout Indian country.

Through the IRS and state housing finance agencies, competitive and lucrative federal income tax credits have been granted to investors like Florida's Raymond James.  In exchange, tax credit investors—which hold title to the tribal LIHTC homes during a 15-30 year tax credit compliance period—are supposed to develop rent-to-own “transfer plans” for tribal homebuyers. 

The tax credit investors are also supposed to make equity reserve account payments for tribal members renting to own the homes.  After a home is in the LIHTC program for at lest 15 years, those monies are supposed to be applied as equity towards the home, allowing a tenant-homebuyer to receive a deed to the home and achieve the American dream of home ownership.

But two decades later, the promise of tribal member LIHTC home ownership has not been widely, if at all, realized in Indian country.

Take Nooksack, for example, where starting in 2006 Raymond James acquired the tax credits for at least three LIHTC projects predicated upon eventual tribal member home ownership.

The Washington State Housing Finance Commission (WSHFC)—formed by the State Legislature in 1983 to catalyze low income housing opportunity in rural Washington—awarded highly competitive and lucrative LIHTCs for each Nooksack low income housing project. Each award of tax credits was specifically based on a 15-year home ownership promise.

For the Nooksack LIHTC homes in rural Whatcom County, though, no home ownership “transfer plan” was ever created by the Tribe or Raymond James, or subject to compliance monitoring or regulatory enforcement by WSHFC.  According to news reporter Chris Aadland:

When the housing units were built, the intent was to sell them to tenants ‘in good standing’ after 15 years, said [WSHFC] spokeswoman Margret Graham. But a rent-to-own plan was never finalized, she said.

State law obligates WSHFC to impose a transfer plan and monitor its progress every five years, but the agency never did its job. 

Seven low income households at Nooksack now face eviction from their homes without due process or just compensation, as reported by Crosscut. As Luna Reyna explains:

By 2021, most of the seven LIHTC homes had been in the program at least 15 years, some much longer, yet none of the heads of households received deeds to the homes.

WSHFC now confesses that it has not approved a single tribal home buyership plan in Washington state. Not one. That means tribal members are not getting deeds to homes, as Congress intended.

Nooksack households facing eviction

Meanwhile Raymond James never made the required equity reserve account payments at Nooksack over the 15-year compliance period.  According to an astonishing WSHFC finding:

Accounts were not funded based on a determination by the tax credit investor that doing so would increase [its] tax liability.

In other words, over the 15 years when Raymond James used LIHTCs to reduce the corporate income taxes it pays to the federal government, the company decided not to fund tribal member equity reserve accounts in order to further reduce its federal income tax liability.

Despite finding the Nooksack LIHTC program in noncompliance with federal and state LIHTC laws on March 15, 2022, WSHFC has demurred, with the state agency’s Executive Director simply citing “tribal sovereignty.” Since the IRS defers to WSHFC to enforce applicable LIHTC covenants, the federal government has thus far also looked away from the apparent federal tax fraud.

This reality is decidedly not what Congress or the Washington State Legislature intended. As things stand in Washington state, the tribal LIHTC program is a shell game.

Gabriel Galanda is an Indigenous human rights rights lawyer in Seattle and the managing lawyer of Galanda Broadman, PLLC.

Galanda Broadman Tribal & Litigation Associate Positions Announcement

Galanda Broadman, PLLC, an Indigenous rights firm with nine lawyers and offices in Seattle and Yakima, Washington, and Bend, Oregon, seeks to add two experienced lawyers to its growing practice in the firm’s Seattle office: a litigation associate and a tribal law associate.

Galanda Broadman is an Indigenous owned firm dedicated to advancing tribal and tribal citizen legal rights and tribal business interests.  The firm represents tribal governments, businesses, and citizens in critical litigation, business and regulatory matters, especially in the areas of Treaty rights, tribal sovereignty, land rights, cultural property protection, taxation, commerce, gaming, serious/catastrophic personal injury, wrongful death, disenrollment defense, and Indigenous human/civil rights.

The firm seeks lawyers who are deeply committed to representing Indigenous interests, who is state bar licensed, preferably in Washington State; and who have civil litigation or a judicial clerk experience.  A litigation associate should have at least three years of experience.  A tribal law associate should have least two years of experience.

Proven motion and civil rules practice, if not trial, experience, and the ability to self-direct are critical. Impeccable writing and research skills; critical and audacious thinking; strong oral advocacy; tremendous work ethic; tenacity; and sound ethics are required. 

Salary DOE. 

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

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

Gabe Galanda’s peers have named him to Best Lawyers in America for the sixteenth 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 2022.

The American Bar Association named Gabe a Difference Maker in 2012 and recognized him with the Spirit of Excellence Award this year.

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 Associate Positions (2) Announcement

Galanda Broadman, PLLC, an Indigenous rights firm with nine lawyers and offices in Seattle and Yakima, Washington, and Bend, Oregon, seeks to add two experienced litigation associates to its growing practice in the firm’s Seattle office.

Galanda Broadman is an Indigenous owned firm dedicated to advancing tribal and tribal citizen legal rights and tribal business interests.  The firm represents tribal governments, businesses, and citizens in critical litigation, business and regulatory matters, especially in the areas of Treaty rights, tribal sovereignty, land rights, cultural property protection, taxation, commerce, gaming, serious/catastrophic personal injury, wrongful death, disenrollment defense, and Indigenous human/civil rights.

The firm seeks lawyers who are deeply committed to representing Indigenous interests, who is state bar licensed, preferably in Washington State; and who have civil litigation or a judicial clerk experience.  A senior litigation associate should have at least five years of experience.  An associate should have at two to five years of experience.

Proven motion and civil rules practice, if not trial, experience, and the ability to self-direct are critical. Impeccable writing and research skills; critical and audacious thinking; strong oral advocacy; tremendous work ethic; tenacity; and sound ethics are required. 

Salary DOE.   

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

Applications directed elsewhere will not be considered.

For more information about Galanda Broadman, visit galandabroadman.com.