New State Law Guards Against WDFW Tribal Sovereignty Violations

By Gabe Galanda & Henry Oostrom-Shah 

Today, Governor Jay Inslee signed House Bill 1369 into law. The bill allows off-duty Washington Department of Fish & Wildlife (WDFW) fish and game enforcement officers to work security for private companies.

During the legislative session, the prime sponsor of HB 1369 explained that WDFW officers would be allowed to work, in their state uniforms, at “large construction projects” throughout the state, which could include projects on Tribal trust or reservation lands. 

Several Washington Tribes feared House Bill 1369, as originally proposed, would have created a Trojan Horse in Indian country: WDFW officers entering sovereign tribal lands without authorization in the guise of private security guards.  As such, Tribal rights advocates requested—and the Legislature approved—two consequential changes to the original legislation.

First, pursuant to an amendment offered by Senators Claudia Kauffman (Nez Perce) and Javier Valdez, any private employer hiring off-duty WDFW officers to work private security on Tribal trust or reservation lands “must have obtained permission from the affected federally recognized Indian tribe.”

Tribes have always protected their people by controlling who enters their territory. This amendment means that WDFW and private companies must respect that fundamental tenet of Tribal sovereignty. In recent years, WDFW has violated Tribal Treaty rights and sovereignty by entering Tribal trust and reservation lands without notice or permission. Tribes can condition their permission on training, culturally-informed procedure, and other best practices to ensure the safety of Indigenous peoples and others on Tribal lands.

WDFW Sergeant Wendy Willette testifying in Skagit County Superior Court in late 2021 regarding her unauthorized entry upon Tulalip Reservation trust lands for investigation and surveillance purposes.

Second, pursuant to an amendment offered by Representative Chris Stearns (Navajo), any WDFW officers seeking to work  private security on Tribal trust or reservation lands must have received training on the history of police interactions with Indigenous communities.

Tragically, people of color in our state suffer disproportionate violence at the hands of the police. Consider the January 2023 report that Spokane Police Department commissioned, which found that the Department used force disproportionately against Black and Indigenous Spokanites. As of late 2022, WDFW did not offer its officers any training on racism in policing or our society, or even on bias more broadly. Anti-bias training can reduce police brutality and improve citizen safety, especially in Indigenous communities.

These successful amendments show that Tribal input matters in Washington state lawmaking, especially when channeled through Indigenous leaders like Sen. Kauffman and Rep. Stearns in Olympia. House Bill 1369 also shows how the voices of the people most affected by the criminal system—Indigenous peoples and other communities of color—can and should be centered in the state legislative process.

Gabe Galanda is the Managing Lawyer of Galanda Broadman, an Indigenous rights law firm.

Henry Oostrom-Shah is a student law clerk with Galanda Broadman. After graduating from Boston University School of Law this month, he will work as a public defender in Portland, Oregon.

10th Circuit Panel Deepens Circuit Split on IHS’s Funding Obligations to Tribes

By Corinne Sebren and Henry Oostrom-Shah

June 2023 Update: The 9th circuit denied the  petition for rehearing en banc in San Carlos Apache. The 10th Circuit has denied rehearing as well.

April 2023 Update: The San Carlos Apache (9th circuit) and the Northern Arapaho Tribe (10th circuit) cases have both filed petitions for rehearing en banc.

On March 6, in Northern Arapaho Tribe v. Becerra, 61 F.4th 810 (10th Cir. 2023), a fragmented panel of the Tenth Circuit deepened an emerging circuit split.  

Now, both the Ninth and Tenth Circuits have held that third-party revenue funded tribal health care programs are eligible for reimbursement of contract support costs under the Indian Self-Determination Education and Assistance Act (ISDEAA). See San Carlos Apache Tribe v. Becerra, 53 F.4th 1236 (9th Cir. 2022). The D.C. Circuit stands alone in excluding the third-party revenue funded portions of these programs from reimbursement. See Swinomish Indian Tribal Community v. Becerra, 993 F.3d 917, (D.C. Cir. 2021).

Though two judges of the three-judge 10th Circuit panel agreed on the overall outcome of the case, all three panelists diverged on their statutory interpretations of the ISDEAA.

Judge Moritz, the author of the opinion, understood the relevant ISDEAA funding provisions to be ambiguous and invoked the Indian canon of construction, which allows a Tribe’s reasonable statutory interpretation to control. Like his colleagues in the Ninth Circuit, Judge Moritz looked to the Tribe’s ISDEAA contract itself to support an interpretation that favored full reimbursement for contract support costs associated with third-party revenue funded programs.

Judge Eid took a different path to reach the same result as Judge Moritz. She held in favor of the Tribe’s position without resorting to the Indian canon of construction. In Judge Eid’s eyes, even though the contract support cost funding scheme contemplated by the ISDEAA is “undoubtedly complex and requires a good deal of analysis,” the meaning of the statute is clear. Her concurrence notes that third-party revenues are not happenstance supplemental funds—instead, “the statutory text contemplates this additional money and requires the tribe to inject it back into its healthcare program.”

Judge Baldock, the lone dissenter, frankly acknowledged that the “complexity of the statutory scheme” barred the panel from “reach[ing] a consensus on its meaning.” However, he would have dismissed the Tribe’s complaint. Judge Baldock explained that one provision within the ISDEAA, 25 U.S.C § 5326, “plainly” limits another, 25 U.S.C. § 5325.

The vigorous debate in Northern Arapaho Tribe v. Becerra, demonstrates that there are still unsettled interpretations of the ISDEAA’s funding provisions. A lot of money is on the line for the infamously and chronically underfunded tribal health programs these provisions affect. Here, for example, the Northern Arapaho Tribe sought to recover over $1.5 million for 2016 and 2017 expenses alone.  

On March 8, 2023, IHS filed a petition in the Ninth Circuit in the San Carlos Apache case for a rehearing en banc to keep their arguments against reimbursement alive. The government's brief sounded the alarm on this still-unsettled "inter-circuit conflict implicating vast sums of money." It is likely a similar petition will be filed in the Tenth Circuit. Meanwhile, several other related cases are pending. See, e.g., Ketchikan Indian Community v. Becerra, No. 3:21-cv-00028 (D. Alaska Feb 12, 2021); Metlakatla Indian Community v. Becerra, No. 3:20-cv-00282 (D. Alaska Nov 05, 2020). These cases remain ones to keep a close watch on.

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

Henry Oostrom-Shah is a student law clerk with Galanda Broadman. After graduating from Boston University School of Law this May, he will work as a public defender in Portland, Oregon.

Gabe Galanda Publishes "Into the Void: Indigenous American Civil Rights"

Gabe Galanda has published "Into the Void: Indigenous American Civil Rights," in the February edition of Washington Association of Justice’s Trial News.

Gabe explains how, over the last two centuries, a great many duty-based Indigenous kinship societies have transmuted into rights-based neocolonial entities and human rights violators, rendering Indigenous citizens the lone naturally born Americans who do not universally enjoy civil rights protection. 

His article can be read here. Here’s an excerpt:

Federal law superimposed an individual rights regime upon Indigenous societies beginning with early nineteenth-century treaties, which conferred personal rights in the form of lands and annuity monies as modes of assimilation. Indigenous societies and tribal nations have struggled with neocolonial, rights-based governance regimes ever since.

Gabe Galanda Publishes Scholarly Essay on Indigenous Kinship Renewal and Relational Sovereignty

Gabe Galanda has published "In the Spirit of Vine Deloria, Jr.: Indigenous Kinship Renewal and Relational Sovereignty" on SSRN.   

Next year his essay will be published by Fulcrum Books in a book that honors the legacy of Vine Deloria, Jr. Gabe will also present his paper at the 18th Annual Vine Deloria, Jr. Indigenous Studies Symposium this May.

In addition to Vine Deloria, Jr., Gabe honors several of his mentors and heroes by citation to their scholarship and words, including Robert Williams, Jr., Robert Hershey, Billy Frank, Jr., Darrell Hillaire, and Alan Parker.

Here's the abstract of his essay:

This essay heeds Vine Deloria, Jr.’s inspiring call for the renewal of Indigenous kinship tradition and counsels for the development of relational sovereignty. The first part deconstructs the U.S. Supreme Court’s 1978 landmark decision in Santa Clara Pueblo v. Martinez to expose its distinctly economic underpinnings. That case exemplifies a steady erosion of Indigenous reciprocity, and concurrent rise of tribal per-capitalism and neocolonialism. The second part suggests five actions that Native nations could take to restore inclusionary, duty-based kinship systems and rules.  First, Native nations should replace blood quantum with alternative citizenship criteria rooted in traditional kinship principles. Second, Native nations should renew kinship terminology to eliminate neocolonial identifiers. Third, Native nations should outlaw disenrollment and bring their relatives home. Fourth, Native nations should lift enrollment moratoria and welcome their lost generations. Lastly, Native nations should—after pausing to understand the colonial legacy of federally sanctioned monetary distributions to tribal individuals—cease per capita payments and reinvest in community revitalization. By drawing on Indigenous traditions of reciprocity and shared destiny, Native nations should reconcile their peoples’ modern individual rights with their customary obligations and duties to one another. Through these strategies, Native nations can engage in a new paradigm of relational sovereignty, whereby Indigenous human existence is exalted and protected over individual power and profit.

Gabe Galanda Named Arizona Law Alumnus of the Year

For his outstanding career achievements and inspiring commitment to service, the Arizona Alumni Association has named Gabriel Galanda the 2023 Alumnus of the Year for the James E. Rogers College of Law.

Gabriel Galanda graduated in 2000 from the Indigenous People’s Law and Policy Program at the University of Arizona’s James E. Rogers College of Law. A member of the Round Valley Indian Tribes of California, Gabe is now one of the country’s leading Indigenous rights attorneys.

As the managing lawyer at Galanda Broadman in Seattle, Gabe navigates complex legal and political issues to defend Indigenous nations and businesses and to advocate for the rights of Indigenous citizens. His work has received recognition including the American Bar Association’s Spirit of Excellence Award. 

Beyond his work in the legal arena, Gabe also founded and operates Huy, a nonprofit dedicated to enhancing religious, cultural and rehabilitative opportunities for Native American prisoners. As chair of the organization’s Board of Advisors, he has led amicus curiae efforts before the U.S. Supreme Court and federal and state appellate courts across the country.

Throughout his busy career, Gabe has remained connected to the university and the College of Law. He is a regular and generous donor to the college, and he also is generous with his time, visiting Tucson to meet with students and serving on the college’s Board of Visitors.

Gabe Galanda Teaches Indigenous Consultation to Washington State Legislators

Today Gabe Galanda presented “From Colonization to Indigenous Consultation and Consent,” to the Washington State House of Representatives State Government and Tribal Relations Committee.

Gabe discussed the history of Indigenous relations in the state of Washington, dating back to the Stevens Treaties in the 1850s and the Fish Wars of the early 1970s and carrying forward to the last half-century of increasing state-tribal consultation and collaboration. 

You can watch his presentation here and view his slides here.

Gabe Galanda Talks Tribal Per-Capitalism, Gaming Lawyer Ethics at Seattle Summit

Yesterday Gabe Galanda spoke at the 20th Annual Northwest Gaming Law Summit, delivering a talk titled, “The Past, Present & Future of Tribal Per-Capitalism & Gaming Lawyer Ethics."

Against a backdrop of over 200 years of harmful federal Indian policy, Gabe warned of the insidious nature of tribal per capita monies and called upon tribal gaming lawyers to guard against related human rights abuse.

You can watch his talk here (at 51:30).

Gabe also co-chaired the Summit. After first speaking at the Summit in 2004 and co-chairing the event every year since 2005, this was his last year serving as co-Chair.

On Ten-Year Anniversary of Nooksack Human Rights Saga, Mass Housing Evictions Proceed Unabated

Today marks year ten of a campaign to purge over 300 Nooksack members and take their homes. Evictions proceed despite the United Nations and United States each calling for a halt.

Deming, WA – Despite calls from the United Nations and two United States agencies for an eviction halt at Nooksack, tribal politicians are proceeding to eject nine households from their homes this winter.    

Nearly thirty Nooksack family members are slated to be ejected from federally subsidized, state regulated homes in northern Washington state this month. One family has already been ordered to vacate their home of 11 years by January 3, 2023.  The eviction imbroglio unfolds as the human battle raging at Nooksack reaches its tenth year today.

Three other households await tribal court rulings.  Having been denied any right to legal counsel by Nooksack authorities, the families are representing themselves pro se.  

As National Public Radio reports, Billie Rabang, age 71, recently explained to a tribal court judge: "The lack of legal representation has stunted us, just I mean, we can't, we don't understand . . . what we're supposed to be doing.” 

Rabang and her husband Francisco Rabang, age 81, have participated in the Nooksack rent-to-own program for the last 15 years. Nooksack has barred the lawyer who has represented them and several of the other families for the last ten years, Gabe Galanda, from advocating for them in tribal administrative or judicial eviction hearings.

Each of the nine homes in dispute were privately developed at Nooksack as part of a Low Income Housing Tax Credit (LIHTC) home buyership program administered by the Washington State Housing Finance Commission (WSHFC).  Starting in 2005, WSHFC awarded the lucrative federal income tax offsets to the developer of three low income housing projects at Nooksack.  

As part of the consideration for the tax credits, deeds to the homes were to be conveyed to Nooksack homebuyers, including the families facing eviction, starting in 2020. Deeds have not been issued, however.  Nooksack authorities are instead taking the homes without due process or just compensation, while officials in Washington, DC to Washington state deflect and demur.

 “This is no time for political hot potato,” said Galanda. “Indigenous lives and homes are at risk. Federal and state officials must be decisive. They must halt these illegal evictions.”

 In February 2022, the United Nations urged the U.S. "to halt the planned and imminent forced evictions" at Nooksack. 

Seven of the households were purportedly disenrolled from the Nooksack Tribe four years ago, amid a campaign to jettison over 300 tribal members that started on December 12, 2012.  But with enrolled tribal members Hameesh Jimmy and Gwendolyn Peterson’s families now among the Nooksack households facing eviction, the purge is no longer about disenrollment.

Although Nooksack politicians delayed the evictions in early 2022 and were then slowed by state judicial processes, they have recommenced the evictions in earnest.  The mass eviction effort has caused international human rights concern.

 The United Nations specifically “appeal[ed] to the U.S. Government to respect the right to adequate housing . . . and to ensure that it abides by its international obligations, including with respect to the rights of indigenous peoples.”  Although the Biden administration has echoed the UN’s humanitarian concerns, it has stopped short of causing a halt to the evictions.

 Deferring to “DOI, HUD, and the Washington State officials on this matter,” the White House explained in a March 2022 email to Galanda: “HUD and DOI have both been closely involved in ensuring that all administrative processes and regulations have been strictly adhered to. DOI and HUD continue to implore Tribal leaders to end eviction plans.” 

 The U.S. Department of the Interior (DOI) “did implore the tribe’s leaders to stop their planned evictions,” but qualified its request with an expressed commitment “to uphold tribal sovereignty.” HUD echoed DOI’s sentiments, “asking the Tribe to stop these planned evictions” but not halting those efforts as a matter of “Federal law and program requirements.” 

 The U.S. State Department was even less committal in its response to the UN, explaining the federal government “continues to urge the Nooksack government to take all reasonable measures to assure that due process of law is maintained.” 

 This past September, HUD disclaimed “HUD does not run the LIHTC program, so HUD has no ability to enforce the homebuyer policy, contract, etc. related to that program.” But able to enforce other federal Indian housing laws, last month HUD did express concern that Nooksack is not providing “certain due process protections” to the households facing eviction. Nooksack, however, rebuffed HUD in a December 1, 2022 letter, indicating tribal court eviction proceedings against the families will proceed undeterred.

 Meanwhile Washington state has thus far refused to enforce applicable state tax credit laws and covenants.  WSHFC, which administers the federal LIHTC program for the U.S. Internal Revenue Service, has cited “tribal sovereignty” to justify its demurral all year. While claiming the current dispute is about disenrollment, WSHFC feigns it “does not have the authority” to prevent the evictions.

“’Tribal sovereignty’ is a political cop out. ’Sovereignty’ was the watchword of southern segregationists in the 1950s. It’s the mantra of authoritarians throughout the world today,” continued Galanda. “Federal and state officials have the power to halt these local human rights violations. They just need to show some courage.”

Despite having found Nooksack to be non-compliant with applicable federal and state home buyership laws early this year, WSHFC “does not see any utility” in reporting the matter to the IRS for enforcement either, explaining “the IRS has made clear in the past that it has no interest in intervening in issues of this nature.”  WSHFC’s own policies, however, mandate an IRS enforcement referral.

The calamity at Nooksack lays bare that Indigenous American citizens do not enjoy enforceable civil rights, including the right to live free from property deprivation without due process or just compensation.  

“It’s horribly sad that the first peoples of these lands do not enjoy this country’s original promise,” continued Galanda. “Indigenous Americans are simply not afforded Bill of Rights protection for their property and homes.”

Last June, the Washington State Supreme Court became the first government entity to take procedural action, when it unanimously enjoined seven of the evictions at Nooksack. But when Nooksack proceeded with those evictions anyway, the Supreme Court Justices reconsidered their injunction, citing “difficult issues and delicate issues of tribal sovereignty.” On a Friday night in mid-September, a majority of the Justices reversed course and, by shadow docket, vacated the injunction without explanation. 

As 2023 approaches, human rights violations have now marred Nooksack for an entire decade, stymying the tribe’s political and economic progress.  After driving through another western Washington tribal community and realizing “how far they are advancing,” Nooksack member Trina Cline recently observed on Facebook that “Nooksack has had little to no change in ten years or more.”

Joe Sexton Teaches PL 280 Jurisdiction & Indian Land Status to Washington AG Ferguson’s Office

On Wednesday, Joe Sexton presented at the Washington State Attorney General’s Indian Law CLE on Jurisdiction in Indian Law: Public Law 280, Retrocession of P.L. 280 Jurisdiction, and Land Status Issues.

 In his presentation, Joe provided an overview of the history of Public Law 280, its modern evolution, and examples of recent litigation involving the law. Joe framed the presentation through the lens of State-Native Nation Relations. 

 Public Law 280 was enacted in 1953, when Congress required six states to assume limited federal civil and criminal jurisdiction in Indian Country, and allowed other states to assume jurisdiction over Indian Country unilaterally. Since its initial passage, PL 280 has been amended and subject to litigation nationwide. In his presentation, Joe described the jurisdictional tug-of-war, pervasive confusion, and frustrations PL 280 has caused to Native Nations and surrounding communities.

 Joe shared his personal experience navigating PL 280 and the confluence of tribal, state and federal jurisdiction as an attorney for Native Nations, including the Yakama Nation, and litigating disputes arising from PL 280 in federal trial and appellate courts.

Joe Sexton is a partner with Galanda Broadman. His practice focuses on complex civil litigation defending indigenous rights and litigating tribal environmental and cultural resources disputes in federal, tribal, state, and administrative forums.  He has litigated indigenous civil rights matters on behalf of individuals and represents tribal governments outside of the courtroom in economic development and natural resources matters.   He has argued before the Washington State Supreme Court, the Washington Court of Appeals, and the United States District Court, and he has represented clients before the United States Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.  

Rachel Tobias Talks Indigenous Fashion Law at New York’s Fashion Institute of Technology

Yesterday, Rachel Tobias spoke to students in the Fashion Institute of Technology’s Cultural Awareness, Design Responsibility, and the Law course about her Indigenous Fashion and Design practice. Highlighting the dual role of lawyers as both advocate and advisor, Rachel engaged with students on tools they can use to protect the unique characteristics of Indigenous designers.

 Amongst growing demand for contemporary Indigenous fashion, there is a burgeoning opportunity for more equitable and sustainable partnerships than have been historically available. In turn, Indigenous designers – and their communities – are in a position to leverage “conscious” capitalism and consumer advocacy into personal and tribal economic growth.

 “I’d say essentially every Indigenous designer I speak to is committed to giving back to their community, whether it be through financial support, employing tribal members or as an ambassador in the corporate space,” Rachel explained to the students. “As future decision makers in this field, it is important to work collaboratively with Indigenous designers and involve them in the product development process.”

 The class was engaged in the presentation, with at least one student reporting she was inspired to pursue career opportunities working with Indigenous designers in the future.

 Rachel is of counsel at Galanda Broadman and, in addition to supporting the firm’s tribal law and Indigenous rights practice, she represents and advises Indigenous designers on an array of matters.