Gabe Galanda Shares "Tribal-State Collaboration and Compacting" Lessons with Washington State Legislators

Yesterday, Gabe Galanda presented “Tribal-State Collaboration and Compacting,” 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 (beginning around minute 40) and view his slides here.

Galanda Broadman Named "Best Firm" in Native American & Gaming Law for Twelfth 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 twelfth 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 eight 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.

Washington Attorney General Continues His War Against The Yakama Treaty

By Joe Sexton

Washington State Attorney General Bob Ferguson is running for governor next year and he is the clear front-runner according to a recent polling.  Ferguson leads the field among self-identified Democratic voter respondents, with 42% of respondents backing Ferguson over second-place contender Hillary Franz who polled at 16%.  What the polls and the media are not highlighting, though, is Ferguson’s long history of hostility towards Tribes and their Treaty rights. 

In fact, Ferguson’s lack of respect for Tribal treaty rights is so regressive that even Trump-appointed U.S. Supreme Court Justice Neil Gorsuch finds it repellant. 

The most glaring evidence of this is found in Ferguson’s continuing open hostilities against the Treaty rights of the Yakama People, a ceaseless conflict with a Yakama business owner waged over several legal battles.  Ferguson has repeatedly lost each and every battle over the last decade. 

Yet he persists in his crusade. 

In what most reasonable people would consider the final nail in the coffin for Ferguson’s contention that the Yakama Treaty Right to Travel does not pre-empt Washington state’s fuel tax scheme, the U.S. Supreme Court handed Ferguson a loss on the issue in 2019.  That decision came after Ferguson lost in the Washington State Supreme Court in 2017 [1], which followed another loss in Yakima County Superior Court. 

At every adjudicative step from an administrative appeal to the highest courts in this state and the nation, Ferguson and the State Department of Licensing (DOL) were told—over and over again—that the Yakama Treaty pre-empts any state law burden on the Yakama People’s right to travel.  Justice Gorsuch wrote in his concurring 2019 opinion that affirming the 1855 Treaty rights of the Yakama People was the least “we can do”:

Really, this case just tells an old and familiar story. The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.

One would think a person with any measure of respect for Tribal Treaty rights would get the message by that point.  Ferguson, unfortunately, has not.  To quote a Ninth Circuit Court of Appeals opinion—from another Stevens Treaty rights case Ferguson lost before SCOTUS—he still “has a remarkably one-sided view of the Treaties.”  For whatever reason, he and DOL remain “dissatisfied” with the Treaty of 1855.  They are still trying to find a way to undermine its “modest promises”—four years after losing at the U.S. Supreme Court.  

(Governor Stevens with indigenous leaders, Walla Walla Council, May 1855.

Illustration by Gustav Sohon, Courtesy Washington State Historical Society)

Why Ferguson wants to continue his losing battle is unclear.  What is clear is that the fight involves money.  The fight over this issue started back when Barack Obama was president, with a 2013 state tax assessment for $3.6 million against Cougar Den, Inc., a Yakama-member owned business.  A decade later, in 2023, Ferguson claims the Yakama-owned business owes “$34,979,246.89 (excluding penalties and interest).”  To the surprise of no one except perhaps DOL and Ferguson, the state has been handed another loss. 

Once again back before a state administrative law judge (ALJ), a decision was issued on October 2, 2023, finding Ferguson’s dishonest [2] attempts to circumvent and undermine the Yakama Treaty unpersuasive:

Here, it is not possible for the Respondent to remove fuel from a terminal without traveling or transporting that fuel on public highways. Accordingly, the Respondent has met its burden to establish that, just like the fuel tax at issue in Cougar Den I & II, taxes assessed pursuant to RCW 82.38.030(9)(a) impermissibly burden the Respondent’s treaty-protected Right to Travel.

Money is no excuse to undermine Tribal Treaty rights.  The least Ferguson and DOL can do at this point is finally recognize that they have lost their war against the Yakama People.  But will they now, or ever?  Or are they hoping for yet another battle at the U.S. Supreme Court, now reinforced with a bigger cadre of anti-tribal jurists?

 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.

[1] Galanda Broadman appeared and argued as amicus counsel on behalf of the Confederated Tribes and Bands of the Yakama Nation before the Washington State Supreme Court. 

[2]The ALJ chose more diplomatic language in its order granting Cougar Den summary judgment:  “The Department’s contention that taxes under RCW 82.38.030(9)(a) attach the moment fuel is removed from the rack, without being tied to travel at all . . . rests entirely upon its misapprehension, and misstatement of the law.” Straining to make their argument fit the law, the state twisted the statute’s language to claim that fuel is taxed when it is “removed at the rack.”  The statute’s language, however, uses language Ferguson’s team omitted from their brief in describing the taxable event: i.e., when fuel is  “removed from the rack.”  As the ALJ found, removing fuel “from the rack” —as the statute prescribes—requires travel.  This omission was certainly purposeful, and used in this case in a cynical effort to continue a fight against the Yakama Treaty that’s never been successful.  

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

Gabe Galanda’s peers have named him to Best Lawyers in America for the seventeenth 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 2023.

The American Bar Association named Gabe a Difference Maker in 2012 and recognized him with the Spirit of Excellence Award last 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. Gabe also recently earned the University of Arizona James E. Rogers College of Law 2022-2023 Alumni of the Year Award for his extraordinary accomplishments and continued dedication to the university.

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.

Three Galanda Broadman Indigenous Rights Lawyers Honored by Super Lawyers

Indigenous rights lawyers Gabe Galanda (Round Valley), Anthony Broadman, and Amber Penn-Roco (Chehalis) were once again honored by Super Lawyers magazine for 2023.

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

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

Kimberly Bender's Law Takes Effect

Today Kimberly Bender’s Law takes effect. As KING-5 news reports:

Senate Bill 5033, known as Kimberly Bender's Law, imposes harsher penalties for sexually abusive jail and prison guards. It goes into effect July 23.

The law would raise the status of second-degree custodial sexual misconduct from a gross misdemeanor to a Class C felony. The second-degree charge applies to cases when a corrections officer or member of law enforcement has sexual contact with a person in their custody. 

"Kimberly Bender's Law" is named after a Quileute woman who died by suicide in her Forks jail cell after reporting her jail guard, John Gray, sexually harassed her.

Gray, the corrections officer at the center of a KING 5 investigation that prompted the legislation, was convicted in 2021 of two felony and two misdemeanor counts of custodial sexual misconduct for sexually assaulting four women who were inmates at the Forks jail in 2019. He served 13 months of his 20-month sentence.

Why is WSHFC Suspending Tenant Home Ownership Opportunity?

WSHFC Director Steve Walker, testifying before Congress about LIHTC, in March 2023.

On June 23, the Washington State Housing Finance Commission (WSHFC) voted to suspend a component of its federal Low Income Housing Tax Credit (LIHTC) program that facilitates tenant home ownership. 

A WSHFC administrator explained: “we need to get our house in order.”  That is because it appears WSHFC has failed to administer the program for the last two decades.  As a result, the eventual home ownership regime that Congress encouraged in 2001 has fallen short in Washington state, if not failed entirely.

Excerpt of WSHFC June 23, 2023 meeting information.

For example, WSHFC reports that there are at least 12 LIHTC eventual home ownership projects in Washington tribal communities. Those projects involve 369 units whereby Indigenous tenants engage in home buyership (commonly called “rent to own”) over a 15-year period. 

At year 15, they are entitled to have the homes conveyed to them, as Congress intends.  But according to WSHFC, it appears that not a single one of those 369 units has yet to be conveyed an Indigenous homebuyer.  That is because WSHFC failed to regulate the home buyership component of those projects since at least 2010. The agency overlooked it all, for the last thirteen consecutive years.

WSHFC’s highly publicized failure to facilitate the conveyance of seven of those 369 units to Indigenous homebuyers at Nooksack, which are now at year 18 in WSHFC’s LIHTC program, has invited the attention of the United Nations; and, according to the Seattle Times Editorial Board, "brings shame on the . . . state."  It is against this political backdrop that WSHFC made its decision to forgo further LIHTC eventual home ownership opportunity for the foreseeable future. 

But that is the wrong approach.  Given the low income housing crisis facing Washington state, WSHFC should be leaning into federally subsidized tenant home ownership opportunity, not recoiling from it.  

More generally, taxpayers should be asking: what is happening—or, what else is not happening—at WSHFC?

Read the UN's Unprecedented Human Rights Communications to the US, Nooksack Tribe (UPDATED)

UPDATED September 28, 2024

The United Nations has once again intervened in the Nooksack human rights calamity, in unprecedented fashion.

In each of the last three years, United Nations human rights officials have decried human rights violations against over 60 Indigenous persons at Nooksack.

Last Friday, the UN criticized the United States and Nooksack governments for failing to substantively respond to its two prior interventions regarding the violated property rights of seven families, “who self-identify as Indigenous Nooksack, but had been disenrolled from Nooksack tribal membership.” The UN is also expressing concern about “fair trial violations” at Nooksack.

Each UN intervention, one after the next, is unprecedented, both in Geneva and the United States. That is because a great many human rights advocates are highly deferential to Tribal sovereignty and otherwise afraid to criticize Tribal nations for human rights abuse.

The UN’s Tribal Interventions “Never Before Seen”

Prior to 2022, at Nooksack, the UN had never before waded into what federal and tribal officials in the United States blithely call “an internal matter.” As the Seattle Times explained in 2023:

Eric Eberhard, a University of Washington School of Law professor and an expert on Native legal issues, has never before seen U.N. experts wade into “what might be viewed as an internal tribal matter,” as opposed to a disagreement between a tribe and the U.S. Not once, let alone twice, he said.

A few passages from the UN’s 2023 communication to the State Department are incisive, and historic.

The UN explained “that all level of state authorities, national, regional, local, Parish, Tribe, and any other, have to abide by national and internationally recognized human rights law and standards and that the national Government has the duty to oversee that this takes place.”

The UN also “emphasize[d] that States and indigenous authorities share the responsibility for ensuring that processes and decisions by indigenous authorities accord with international human rights, particularly in the context of possible conflicts between the rights and interests of individual indigenous members and the collective rights and interest of an indigenous people or community.” 

In what may prove over time to be a watershed moment in domestic Indigenous human rights protection vis-a-vis Tribal nations, the UN proclaimed: “indigenous institutions and justice systems have an obligation to comply with international human rights standards.”

Also prior to 2022, the UN had never before intervened with a Tribal nation that had violated internationally recognized human rights laws.

In its 2023 communication to the Nooksack Tribe, the UN “emphasize[d] that the UNDRIP protects both individual and collective rights of indigenous peoples and that it needs to be interpreted as complementing - and not acting contrary - to the principles of justice, democracy, respect for human rights, equality and non-discrimination, good governance and good faith.”

The UN’s interventions at Nooksack are believed to represent Geneva’s first application of the UNDRIP’s individual rights provisions to Tribal nations, which generally stand above reproach in civil and human rights communities.

In 2021, U.S. Interior Department Secretary Deb Haaland testified before the UN, proclaiming: “I strongly affirm the United States’ support for the UN Declaration on the Rights of Indigenous Peoples, and our commitment to advancing Indigenous Peoples’ rights at home and abroad.”

It appears, however, that the Biden administration’s stated commitment to Indigenous Peoples’ rights is just words.

Gabe Galanda is an Indigenous rights attorney and the managing lawyer at Galanda Broadman. He has been named to Best Lawyers in America in the fields of Native American Law and Gaming Law from 2007 to 2024, and dubbed a Super Lawyer by his peers from 2013 to 2024. Below are all of the communications between the UN, State Department, and Nooksack Tribe since 2022.

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2-1-22 UN OHRC Communication to US State Department

2-24-22 US State Department Communication to UN OHRC

3-31-23 UN OHCR Communication to Nooksack Tribe

3-31-23-UN OHRC Communication to US State Department

6-1-23 US State Department Communication to UN OHRC

6-6-23 Nooksack Tribe Communication to UN OHRC

9-27-24 UN OHCR Impact of the Work of Special Procedures - Policy Reform - Nooksack

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 2023. Gabe Galanda was also ranked among the best Native American Law practitioners in the latest edition.

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.

Galanda Broadman 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.

Galanda Broadman is honored to be ranked 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 Ends Racially Disproportionate Juvenile Sentencing Enhancements

Yesterday Governor Jay Inslee signed HB 1324 into law, ending Washington state’s judicial practice of automatically enhancing criminal sentences against adults based on crimes they committed as juveniles.

Nearly 400 Indigenous persons incarcerated in the Washington State Department of Corrections (DOC) are subject to a sentence that has been lengthened based upon a juvenile felony commitment. They represent 41% of the Indigenous persons in the DOC—the highest rate of unduly long sentences suffered by any racial group in Washington state.

As the ACLU explains: “Eliminating the use of juvenile records to automatically give people longer sentences will reduce racial disparities, account for discoveries in developmental brain science, and stop punishing people twice by no longer counting juvenile points in adult sentencing calculations.”

Unfortunately the Senate amended HB 1324 to eliminate the bill’s retroactivity.

The importance of retroactivity to Indigenous families, communities, and nations in Washington state is explained in a recent Everett Herald op-ed authored by Derrick Belgarde, Gabe Galanda, and Winona Stevens. The full text of that op-ed is below.

Members of the Washington State Legislature have committed to introducing a bill in the 2024 legislative session to make the new law retroactive.

Comment: Counting juvenile crimes against adults unjust to many

The Washington State Legislature has an opportunity to move beyond performative Tribal land acknowledgments and renew hundreds of Indigenous lives. HB 1324 would end automatic sentence enhancements for adults who fell down as adolescents.  But for that reform to matter—for Indigenous life to matter—it must be both forward and backward looking.

Citing the intergenerational historic trauma suffered by all Indigenous persons in our state, eight Tribal governments and Indigenous social justice organizations have urged the Legislature to pass HB 1324.

We know that youth are different from adults – it’s why we have two separate state systems of “justice” in the first place. Because a child’s brain is not fully developed, and won’t be until they are at least 25 years old, they are more likely to be impulsive, susceptible to peer pressure, and less able to weigh the causes and effects of their actions.

Those realities are compounded for Indigenous youth due to the intergenerational trauma inflicted upon Tribal communities as a result of our country’s original sin: colonization.  

The rate of Indigenous fetal alcohol syndrome is more than eight times the national average. Psychological factors, such as the fear experienced by pregnant Indigenous mothers who are battered, create physiological changes that negatively impact brain development. 

From the moment they are born, many Indigenous children suffer neurological harm.  By the time of adolescence, many Indigenous youth suffer an inability to decipher right from wrong or the repercussions of poor decisions.  And when they falter as adolescents, the Washington state criminal “justice” system catapults them into our state’s prison pipeline rather than helping them rehabilitate.

Indigenous adolescents are [three times] more likely to be referred into our state’s juvenile justice system than white adolescents.  In turn, Indigenous persons disproportionately suffer life or long sentences in Washington. The number of Indigenous persons serving long sentences is two and a half times the percentage of Washington’s Indigenous population. 

Those life and long sentences correlate to the fact that of nearly 1,000 Indigenous persons in Washington state prisons today, 41% of them suffer a juvenile felony adjudication on their offender score.  That is the highest rate of disproportionate sentencing enhancement suffered by any racial group in our state carceral system.

The sordid history of Tribal displacement and Indigenous family separation at the hands of the U.S. government has created a cycle of intergenerational trauma that manifests in substance use and domestic violence within Tribal communities. It all now compounds through mass incarceration.

As historic trauma and carceral institutionalization synergize, our peoples endure spiritual devastation and grow weaker. Those dynamics lead to institutional mindsets and cumulative group trauma and, in turn, further disproportionate criminal prosecution and incarceration. Rinse, repeat.

Still, our Tribal communities and Indigenous families are trying their hardest to break the cycle.  But our people, especially our youth, need a break.  We need time and space.  We need hope and healing.  We need our relatives, especially those who made mistakes when they were young, to come home.  Our organizations stand ready to help our relatives successfully reenter society and avoid recidivism.

Last month, the State House of Representatives passed HB 1324 to apply retroactively to people currently serving unjust life or long sentences.  But when the bill reached the Senate last week, the bill was amended so it would only apply to future cases. That was a missed opportunity for justice for our peoples, and healing for our relatives. 

If Washington sincerely cherishes Indigenous people and culture as part of our state’s fabric, or seeks to atone for the historic harms that have befallen our state’s original peoples, HB 1324 presents a real opportunity.  Our elected representatives in the Senate should pass an amendment to restore retroactivity to the bill and support a fresh start for Indigenous youth and families.

Derrick Belgarde is the Executive Director of Chief Seattle Club in Seattle. Gabe Galanda is the Chairman of Huy’s Board of Advisors in  Seattle.  Winona Stevens is the Executive Director of Native American Reentry Services in Tacoma; she serves on the Washington Statewide Reentry Council.