Trump’s Ineffective End to the “War on Coal”

By Amber Penn-Roco

On March 28, 2017, President Trump issued an Executive Order, “Promoting Energy Independence and Economic Growth,” designed to roll back President Obama’s climate change policies and to revive the coal industry.  Upon signing the Executive Order, President Trump remarked that he was “putting an end to the war on coal,” telling coal miners: “You’re going back to work.”  The next day, the Trump Administration formally lifted a coal-leasing moratorium on federal lands. 

Critics immediately expressed doubt as to whether President Trump’s Executive Order would be able to stop the coal industry’s decline, pointing out that the coal industry’s biggest problem is not regulation, but the rise of natural gas. 

A recent report from the Center on Global Energy Policy at Columbia University’s School of International and Public Affairs casts further doubt on effectiveness of the Executive Order, asking: “Can Coal Make a Comeback?”  The report examines the cause of coal industry’s collapse and the “prospects for a recovery of US coal production and employment by modeling the impact of President Trump’s executive order and assessing the global coal market outlook.”

The report supported critics’ assertions that natural gas, rather than regulation, was the primary reason for the decline in the coal market.  The report finds: “Increased competition from cheap natural gas is responsible for 49 percent of the decline in domestic US coal consumption. Lower-than-expected demand is responsible for 26 percent, and the growth in renewable energy is responsible for 18 percent.”  Further, the report finds that “environmental regulations have played a role in the switch from coal to natural gas and renewables in US electricity supply by accelerating coal plant retirements, but were a significantly smaller factor than recent natural gas and renewable energy cost reductions.” 

The report also indicates that international factors further contributed to the decline in coal, finding: “Changes in the global coal market have played a far greater role in the collapse of the US coal industry than is generally understood . . . More than half of the decline in US coal company revenue between 2011 and 2015 was due to international factors.”

The report scrutinizes the effectiveness of the Executive Order, finding that “[i]mplementing all the actions in President Trump’s executive order to roll back Obama-era environmental regulations could stem the recent decline in US coal consumption, but only if natural gas prices increase going forward. If natural gas prices remain at or near current levels or renewable costs fall more quickly than expected, US coal consumption will continue its decline despite Trump’s aggressive rollback of Obama-era regulations.” 

Ultimately, the report concludes, “President Trump’s efforts to roll back environmental regulations will not materially improve economic conditions in America’s coal communities.”  The report states that considering the “domestic and international market outlook, we believe it is highly unlikely US coal mining employment will return to pre-2015 levels, let alone the industry’s historical highs."

Coal is a contentious issue in Indian Country.  On one hand, many tribes own land that has large coal reserves.  Coal can provide an economically depressed tribe a source of income.  Accordingly, many tribes support the development of natural resources on their lands.  However, many tribes are also resistant to coal mining, as it can result in the destruction and desecration of the natural environment and tribal sacred places. 

In particular, many tribes, and individual tribal members, oppose the resulting environmental impact of coal burning, which increases the emission of greenhouse gases, negatively impacting climate change.  Climate change has, historically, had a disparate impact on indigenous peoples.  As recognized by the United Nations, “Indigenous peoples are among the first to face the direct consequences of climate change, owing to their dependence upon, and close relationship with the environment and its resources.”  Indeed, “Climate change exacerbates the difficulties already faced by vulnerable indigenous communities, including political and economic marginalization, loss of land and resources, human rights violations, discrimination and unemployment.”

Accordingly, President Trump’s ineffective Executive Order will have a mixed impact on tribes.  Tribes that allow coal mining may suffer economically.  Though, no more than they would’ve suffered already under the declining coal market.  However, from an environmental perspective, the decline of the coal industry is a favorable result, as it will decrease emissions.  In all, as the President’s pro-coal Executive Order demonstrates, the issue is more nuanced that it might first appear, with Tribes having interests on both sides.

Amber V. Penn-Roco is an associate attorney at Galanda Broadman, PLLC.  Amber is a member of the Confederated Tribes of the Chehalis Reservation.  Amber’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  Amber can be reached at (206) 713-0040 and amber@galandabroadman.com.

New Book Includes Gabe Galanda's "The American Indian Middle Class"

A new book, "The American Middle Class: An Economic  Encyclopedia of Progress and Poverty," includes a chapter authored by Gabriel Galanda, titled "The American Indian Middle Class."

Gabe discusses the Dawes Act of 1887, the Urban Indian Relocation Program of the 1950s, federal Indian self-determination laws and policy since the 1970s, President Reagan's Commission on Indian Reservation Economies of the 1980s, and of course Indian gaming since 1988 primarily.  He concludes: "As Indian self-determination has firmly taken hold, so too has a tribal middle class."

An excerpt:

Then of course there was, and is, Indian gaming.  What began with high-stakes bingo on various reservations in the 1970s has since the passage of the federal Indian Gaming Regulatory Act in 1988[1], blossomed into a now steady $28-billion industry.[2]  Although Indian gaming has most certainly catapulted thousands of reservation Indian families out of poverty and into much higher income brackets, the new money of Indian gaming per capita distributions has created a unique, unemployed segment of the tribal middle class.  Ho-Chunk, Inc., CEO Lance Morgan has indicted those distributions as a “new form of welfare [that] is just the latest in a cycle of dependency that Indian Country has been trying to break out of for the last 100 years.”[3]  

That new money has also catalyzed the ejection of tribal members en masse through what is called tribal disenrollment, a process of terminating members’ citizenship with their tribal government. As the Ninth Circuit Court of Appeals recently took occasion to remark about what is in essence tribal self-termination: “membership disputes have been proliferating in recent years, largely driven by the advent of Indian gaming, the revenues from which are distributed among tribal members.”[4]  In what has been described as a disenrollment epidemic, thousands of Indians—in 17 states and from over 60 tribes—have been jettisoned in recent years, relegating some of them into the lower class, if not abject poverty, and otherwise leaving them “culturally homeless.”[5]  Disenrollment has, thus, uniquely caused socio-economic stratification within tribes.[6] 

Meanwhile, those Indians who remain tribal members and still receive gaming per capita monies may not have made the definitional “sacrifices to create a better life for themselves,”[7] but they nonetheless comprise part of the tribal middle class.

The chapter was written in 2014, before undergoing an elaborate editorial and publication process. Disenrollment has increased in the interim.  As of today, nearly 80 tribes in 18 states have engaged in disenrollment, with an estimated 9,000-10,000 Indians having been terminated.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.

[1] 25 U.S.C. 2701 et seq.

[2] Press Release, National Indian Gaming Commission, 2013 Indian Gaming Revenues Increased 0.5%  (Jul. 21, 2014), available at http://www.nigc.gov/Media/Press_Releases/2014_Press_Releases/PR-226_07-2014.aspx.

[3] Stephan Cornell et al., Per Capita Distributions of American Indian Tribal Revenues: A Preliminary Discussion of Policy Considerations 1 (Native Nations Institute for Leadership, Management, and Policy & The Harvard Project on American Indian Economic Development, Occasional Paper No. 2008-02, 2007).   

[4] Alto v. Black, 738 F.3d 1111, 1116 n.2 (2013).

[5] David E. Wilkins, Two Possible Paths Forward for Native Disenrollees and the Federal Government?, Indian County Today Media Network, June 4, 2014; Cedric Sunray, Tribes Abandon Traditional Aspects of Inclusion, Indianz.com, Oct. 20, 2014, available at http://www.indianz.com/News/2014/015388.asp; Gozia Wosniacka, Disenrollment Leaves Natives ‘Culturally Homeless,’” Associated Press, Jan. 20, 2014, available at http://bigstory.ap.org/article/disenrollment-leaves-natives-culturally-homeless.

[6] Gabriel S. Galanda, Disenrollment Causes Tribal Classism, Income Inequality, Native News Network, June 29, 2015, available at http://nativenewsonline.net/opinion/disenrollment-causes-tribal-classism-income-inequality/.

[7] John Parker, Burgeoning Bourgeoisie, The Economist, Feb. 12, 2009, available at http://www.economist.com/node/13063298.

Gabe Galanda Featured in "Tribal Councils Increasingly Expel Members"

CQ Researcher has published an in-depth look at Indian Country today, including a profile on disenrollment titled, "Tribal Councils Increasingly Expel Members," in which Gabe Galanda is featured.

Gabriel S. Galanda, a Native American attorney who is fighting the disenrollment of more than 300 members of the Nooksack Indian Tribe in northwest Washington state, attributes the trend to “power and greed” sparked by increasing economic capitalism on native lands. 
Galanda says disenrollment is a non-native concept that stems from federal policies that required tribes to determine who belonged.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.

Tribal Tide Turning Against Disenrollment in 2017

For the second time in as many months, a Northern California tribal community has reversed course and reinstated tribal members who had been disenrolled.

Late last week, the Elem Indian Colony announced that the purported disenrollment of as many as 132 tribal members, who comprise 100% of the Colony's population, was reversed.   

In February, the Robinson Rancheria reversed the 2008 disenrollment of some 60 tribal members.

Robinson was the first tribe of nearly 80 tribes that have engaged in disenrollment, to voluntarily bring everyone who was disenrolled back onto the rolls.  

The two tribes' actions, coupled with modern decisions by other tribes to constitutionally prohibit disenrollment, suggest a reversal in the deadly trend of disenrollment that has overcome Indian Country in this era of Indian gaming and economic revitalization.  

With California "the epicenter of the disenrollment crisis" over the last decade, Elem and Robinson's decisions to reverse course seem especially pivotal.

Meanwhile, in Tucson last month a first-of-its-kind conference convened, bringing together tribal leaders, academics and advocates to discuss the disenrollment epidemic and its potential cures.  

As chronicled by Indian Country Today Media Network, several Tribal Chairs openly participated in the "two-day forum discussing tribal kinship, Native Nation citizenship, and tribal disenrollment by exploring questions that relate to citizenship and community-belonging in Indian country."

That discussion by tribal leaders was historic because as Ramona Band of Cahuilla Tribal Chairman Jospeh Hamilton bravely explained in 2015:

[N]obody in tribal leader circles is willing to talk about [disenrollment]. Not at NCAI, not at NIGA, not among Southern California tribal leaders, not anywhere.

As that tribal taboo ebbs, the tide turns against disenrollment.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.

Washington Supreme Court End-runs Tribal Sovereign Immunity

By Joe Sexton

On February 16, a split Washington State’s Supreme Court issued a ruling providing a way to circumvent tribal sovereign immunity, at least as far as claims concerning tribal land go. 

As Anthony Broadman, partner at Galanda Broadman, warned in 2011, in rem exceptions to the rule that tribes cannot be sued absent clear and unambiguous waivers of sovereign immunity have the propensity to swallow tribal sovereign immunity.  The case discussed here appears to signal that this warning was prescient.

In Lundgren v. Upper Skagit Indian Tribe, 2017 WL 635649 (Wash. 2017), the court held that sovereign immunity did not bar a quiet title action that impacted tribally owned fee land.  At first blush, the Lundgren case appears to be a run-of-the-mill boundary dispute in which adverse possession transforms a de facto recognized property boundary into a legally recognized boundary.  But this case will likely cut a wider swath as parties with land disputes of all varieties against tribal sovereigns will leverage the holding. 

In this case, the Lundgren family purchased a parcel of land and then built a boundary fence beyond the deeded boundary of their land.  According to the Lundgrens, this fence was recognized as the property boundary for sufficient time to be deemed the legal boundary under the doctrines of adverse possession or mutual recognition and acquiescence. 

In 2013, the Upper Skagit Indian Tribe acquired title to the parcel the Lundgrens had encroached upon with their boundary fence.  At the time the Tribe acquired title, it was apparently unaware of the boundary fence and its encroachment on the Tribe’s land.  During the course of a fee-to-trust transfer process concerning its parcel, the Tribe learned of the encroaching fence and notified the Lundgrens that the fence did not represent the boundary between the two parcels, and that the Tribe was asserting ownership rights over its entire deeded property.

The Lundgrens sued to quiet title in state court under that court’s in rem jurisdiction. They moved for summary judgment, asserting that “they acquired title to the disputed property by adverse possession or by mutual recognition and acquiescence long before the Tribe bought the land.”[1]  The Tribe moved to dismiss under Rules 12 and 19, arguing that the Tribe was a necessary and indispensable party.  Because the Tribe had not waived its sovereign immunity, the Tribe could not be compelled to join the litigation.  Consequently, the Tribe asserted, the Lundgrens’ lawsuit must be dismissed. 

The trial court granted summary judgment in favor of the Lundgrens and denied the Tribe’s motion to dismiss, ruling that “because [the court] had in rem jurisdiction, it could determine ownership of the land without the Tribe’s participation.”[2] 

The Supreme Court affirmed the trial court.  The five-Justice majority opinion reasoned that the trial court was not deprived of jurisdiction by a claim of sovereign immunity because in rem proceedings are distinct and not constrained by such issues rooted in personal jurisdiction.  This effectively opens the door to parties using in rem proceedings as an end run around sovereign immunity. 

The flaw in the Lundgren majority’s analysis, and the potential for litigants to exploit this flaw as a loophole to sovereign immunity, is that the decision conflates the court’s subject matter jurisdiction, with the question of whether necessary and indispensable parties have been and can be joined.  As Justice Stephens’ dissent observes, the majority opinion uses in rem jurisdiction to essentially ignore sovereign immunity and dispense with questions of which parties are required for a full and just adjudication:

The court’s authority to exercise in rem jurisdiction does not obviate the need to determine which parties must be joined to fully and justly adjudicate the action. Which parties are necessary and indispensable is a separate question from the court’s jurisdiction—one I find dispositive in this case given the Tribe’s sovereign immunity.[3]

Although the Lundgrens’ claim of adverse possession may have merit on its own, the question of sovereign immunity is separate.  It remains to be seen whether the Lundgren decision will end up nothing more than a narrow exception to the general rule barring claims impacting a tribe’s fee land where the tribe has not waived sovereign immunity.  It is likely, however, that parties with land disputes impacting tribally owned fee land now see a way to get around sovereign immunity via in rem jurisdiction, and will seek to expand the Lundgren holding against tribal interests.

[1] Lundgren v. Upper Skagit Indian Tribe, 2017 WL 635649, *1 (Wash. 2017).

[2] Id. at *2.

[3] Id.  at *8.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and joe@galandbroadman.com.

Indian Lawyers: #StopDisenrollment

On Wednesday, February 8, Indian lawyers from across the country strike the pose to express: #StopDisenrollment. The stand they took is consistent with the National Native American Bar Association's Ethics Opinion, that lawyers engaged in disenrollment process void of due process or legal remedy, are behaving unethical. These developments suggest a self-correction regarding the "alarming trend of tribal lawyer-catalyzed disenrollment efforts."

Gorsuch’s Colorful Ute Tribe Decisions Offer Glimpse of Indian Law Chops

Judge Neil Gorsuch’s decisions in the Tenth Circuit’s series of cases involving the Ute Tribe offer a glimpse of how Indian law will fare before the Court -- assuming Judge Gorsuch joins it. 

Judge Gorsuch’s decision in Ute Tribe v. Myton (10th Cir. 2016) is must reading for anyone who appreciates judges who use narrative in their opinions.  Long before he was a blip on the Trump nominee list, Judge Gorsuch used of the myth of Sisyphus to kick off his description of the Ute epic.  

And before that, in Ute Tribe v. Utah (10th Cir. 2015), Judge Gorsuch used similarly bright language and narrative structure in a more substantive pro-Tribal sovereignty decision, reminding Utah and several of its counties of previous decisions on tribal sovereignty.  Judge Gorsuch wrote:

For a legal system to meet this promise, of course, both sides must accept—or, if need be, they must be made to respect—the judgments it generates. Most people know and readily assent to all this. So it's pretty surprising when a State and several of its counties need a reminder. But that's what this appeal is all about.

Much more will be written and learned about Judge Gorsuch in the coming days.  But for now, we can appreciate his writing--and familiarity with Indian law in the West. 

Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.