This Friday, March 24, Gabe Galanda will delver the keynote address at “Blood Quantum, Identity, and Sovereignty: Contemporary Legal Battles in Indigenous Communities," a symposium presented by Native American Law Students Association (NALSA) at UC Irvine
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.” 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.”
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.
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.
 Lundgren v. Upper Skagit Indian Tribe, 2017 WL 635649, *1 (Wash. 2017).
 Id. at *2.
 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 email@example.com.
Gabe Galanda's alma mater, the University of Arizona College of Law, has honored him with the Professional Achievement Award.
Last Friday KIRO Radio's Dave Ross interviewed Gabe Galanda regarding "the deeply troubling phenomenon of tribal disenrollment...delving into the root causes, social ramifications for those disenrolled, and the implications for tribal sovereignty under the Trump administration."
Listen to the interview here.
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."
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, firstname.lastname@example.org, or via www.galandabroadman.com.
Gabe Galanda was mentioned in the New York Times Magazine feature story regarding the American Indian disenrollment epidemic.
The print story is titled, "The Disenrolled." The online version is titled, "Who Decides Who Counts As Native American?" The story features Galanda Broadman client, the Nooksack 306.
Last week, Professor Kevin Washburn wrote about the “particularly vexing problem” that is “the disenrollment crisis,” suggesting:
[F]or tribes engaging in disenrollment in what appears to be an unjust manner . . . perhaps the federal government should reserve the right to assert diplomatic consequences, which could be fiscal in nature, equivalent to international economic sanctions . . .
In 2014, Professor Washburn, Interior Assistant Secretary for Indian Affairs, rightly called disenrollment acts “human rights violations.”
Economic sanctions are a widely accepted, in fact expected, way for sovereigns and NGOs to deter human rights abuse. For decades, the United States imposed economic sanctions against Cuba in part due to human rights violations by the Castro Regime.
In 2015, when then Indiana Governor Mike Pence signed a law that allowed business to discriminate against LGBT, states like Washington, New York and Connecticut banned state-funded travel to the Hoosier State.
Last year, when North Carolina passed its bathroom bill in violation of transgender human rights, the NCAA cancelled its plans to host lucrative championship events there.
With disenrollment now an epidemic that has ravaged in upwards of 9,000 tribal members from 79 tribes in 20 states, Indian Country’s power elite must do something.
In the spirit of Professor Washburn’s call for nation-to-nation economic sanctions for disenrollment, Native Nations and associations like the National Congress of American Indians (NCAI), National Indian Gaming Association (NIGA) and their regional counterparts, should start by boycotting disenrolling tribes.
In particular, those inter-tribal organizations should refuse to hold their lucrative conferences in the territory of, or otherwise in conjunction with, a disenrolling tribe.
The Affiliated Tribes of Northwest Indians (ATNI) recently held is Mid-Year Conference on the Grand Ronde Reservation; it should not do so again.
United South and Eastern Tribes (USET) is poised to allow the Eastern Band of Cherokee Indians to host its Annual Meeting this year; that meeting should occur elsewhere in Indian Country.
It is time for Indian Country to put its money where our values are.
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. He advocates to #StopDisenrollment.
By Ryan Dreveskracht
A. Use of Deadly Force in the Civil Context
On the night of October 3, 1974, a fifteen year old, unarmed boy broke a window and entered an unoccupied residence in suburban Memphis, Tennessee. Two police officers, called to the scene by a neighbor, intercepted the youth as he ran from the back of the house to a six-foot fence in the back yard. Using a 38-calibre pistol loaded with hollow point bullets, one of the officers shot and killed the boy from a range of 30 to 40 feet as he climbed the fence to escape. After shining a flashlight on the boy as he crouched by the fence, the officer identified himself as a policeman and yelled “Halt.” He could see that the fleeing felon was a youth and was unarmed. As the boy jumped to get over the fence, the officer fired at the upper part of the body, as he was trained to do by his superiors at the Memphis Police Department. He shot because he believed the boy would elude capture in the dark once he was over the fence. The officer was taught that it was proper to kill a fleeing felon rather than run the risk of allowing him to escape.
The boy’s father brought a civil rights suit against the City under 42 U.S.C. § 1983 to recover damages for wrongful death caused by the officer’s use of excessive force and the Memphis Police Department’s policies regarding the use of deadly force. Following a bench trial, the District Court dismissed the case against the officer and the municipality, holding that both the officers and the City acted in good faith reliance on a Tennessee law that allows an officer to “use all the necessary means to effect the arrest,” including death, if the suspect was thought to have committed a felony. The Sixth Circuit upheld the decision, based, in part, on the fact that the Tennessee law at issue had been in place for decades, and was codified common law in numerous jurisdictions.
On appeal to the Supreme Court, Justice White wrote for the majority that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable”:
It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
In addition, the Court held that this law made little sense as a policy matter. Police departments had long ago abandoned the idea (at least in practice) that deadly force should be the default option for stopping non-violent offenders. The common law rule, in fact, was a relic of an age where most crimes were punishable by death and most felonies were violent ones. However, we were now in an age of due process, where we had trials and did not “shoot first and ask questions later.” The opinion does not condone the offender in victim but it does, in a way, encourage us to sympathize with him: he may have deserved a trial and punishment, but he did not deserve to die.
Less than four years later, in Graham v. Connor, the Court explicitly articulated the test for determining whether the force used to effect a particular seizure is reasonable: “a careful balancing of the nature and quality of the intrusion on the individual’s [right to life] against the countervailing governmental interests at stake.” This balancing test entails consideration of the totality of the facts and circumstances in the particular case, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Importantly, the test articulated by the Graham Court is objective:
[T]he “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.
B. Criminal Prosecution of Police Officers
As potent as Garner and Graham were, they were also limited. Again, these cases were § 1983 civil rights suits that forced the Court to decide what amount of force counted as “reasonable” under the Fourth Amendment. However, deciding the constitutional standard in a civil action—where the plaintiff is seeking money from the defendant—did not disturb what the standard had to be for state criminal law prosecutions against officers. States still have the authority to pronounce under what circumstances police can justifiably use deadly force, and so avoid punishment under state law.
In other words, the decision did not require that Tennessee change its statute that permitted police to shoot at a fleeing felon, nor did it require any other state to abandon the common law rule. States still have the power to decide what defenses officers can have, and the scope of those defenses. A state can decide to have a “stand your ground” law, or it can decide not to have one, but neither is required or prohibited by the Constitution. States can legislate that officers are never allowed to use deadly force, or they can legislate that officers are always allowed to use deadly force if they feel that it will help them capture the suspect.
Civilly, the latter may be unconstitutional as applied, but the law will always excuse a compliant officer from criminal conviction. Michigan and Alabama, for example, still permit their police to use deadly force if it is necessary to arrest a fleeing felon, without reference to any considerations related to the type of felony at issue or the danger the suspect poses to the officer or the public. In these states, as in Garner, if a police officer witnesses any felony—a drug deal, a car break-in, or simply the passing of a bad check—and can only apprehend the suspect by killing him, the officer will not be criminally convicted by doing so.
Michigan and Alabama are extremes, however. On the other side of the isle are states like Connecticut and North Carolina, which only authorize deadly force if the officer reasonably believes it essential to catch the suspect and when it is actually necessary to make an arrest. In other words, officers’ subjective intent do not govern whether they are subject to being charged with committing a crime—only homicides committed by the police that are objectively justified under the circumstances are automatically considered lawful.
C. The Use of Deadly Force in Washington State
Antonio Zambrano-Montes was shot and killed by police officers in Pasco, Washington, on February 10, 2015. A video capturing the fatal incident shows Mr. Zambrano-Montes running from three police officers across a busy intersection, with police officers opening fire as Mr. Zambrano-Montes started to cross the road and was raising his hands. The police officers chased after Mr. Zambrano-Montes onto the sidewalk and, facing him, discharged several further shots. Of the 17 bullets aimed at Mr. Zambrano-Montes, five to six struck him, causing his death. He was unarmed at the time of the shooting. When questioned about the incident, officers contended that they were threatened for their lives because Mr. Zambrano-Montes was threatening to throw rocks at them. In justifying his decision not to criminally charge the officers, the prosecutor stated that “he was limited by state law and what he could prove in court” in that “officers are generally justified in the use of deadly force unless there is a presence of malice or if the officers were not acting in good faith.” In other words: the officers say they were scared for their lives and we have to take them at their word.
As this case demonstrates, Washington State has a law that is more susceptible to abuse than the Connecticut and North Carolina statutes. In Washington, an officer will not “be held criminally liable for using deadly force” if he or she acts “without malice and with a good faith belief that such act is justifiable.” This is a purely subjective standard—it asks the jury and the prosecutor to get into the officer’s brain and determine if he or she meant to harm the suspect, regardless of the objective reasonableness of that belief. This standard makes it almost impossible for prosecutors to bring criminal charges, even if they conclude that an officer objectively committed a wrongful killing.
During the 2016 regular legislative session, the Legislature established the Joint Legislative Task Force on the Use of Deadly Force in Community Policing through the passage of Engrossed Substitute House Bill 2908. The legislation charged the Task Force with reviewing and making recommendations on Washington State’s use of force law. Over the next year, the Task Force reviewed U.S. Supreme Court cases, state statutes, and over 130 pages of memoranda and letters on charging decisions written by prosecutors in Washington. The resultant report was recommended the following change to Washington State’s use of force statute, as follows:
A public officer or peace officer shall not be held criminally liable for using deadly force [deleting: without malice and with a good faith belief that such act is justifiable pursuant to this section] if a reasonable officer would have believed the use of deadly force was necessary in light of all the facts and circumstances known to the officer at the time.
In recommending this change, the Task Force explicitly sought to bring Washington State into line with Garner and Graham:
This test is used because “[e]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” Horton v. California, 496 U.S. 128, 138 (1990). This objective good faith standard continues to be used in police shootings, which court’s recognize “are often the most difficult–and divisive–cases that our legal system and society encounter.” Estate of Diaz v. City of Anaheim, 840 F.3d 592, 606 (9th Cir. 2016). Washington’s current use of force statute, which was adopted shortly after Garner, applies both an objective “good faith” standard and a subjective “malice” standard. Subsequent to the enactment of our current statute, the United States Supreme Court counseled that, with respect to the lawfulness of an officer’s use of force, “subjective concepts like ‘malice’ and ‘sadism’ have no proper place in that inquiry.” Graham v. Connor, 490 U.S. 386, 399 (1989). Removing “malice” and defining “good faith,” as whether a reasonable peace officer, relying upon the facts and circumstances known by the officer at the time of the incident, would have used deadly force, renews our commitment to the Fourth Amendment standard. Further, the phrase “good faith” is an appropriate label for this definition within a criminal charging standard as opposed to a civil liability standard. A police officer’s intent should be relevant and part of the calculation, just not controlling. Stated another way, we want to protect honest mistakes, but not necessarily egregious ones. The definition of good faith contained in this bill is derived from Graham. The calculus of reasonableness contained in the definition makes “allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”
D. Next Steps
The Task Force has proposed a solution to Washington State’s use of force statute that (1) removes the de facto immunity from criminal liability for unlawful uses of deadly force by law enforcement. (2) provides an objective standard of review for law enforcement use of deadly force, and (3) protects honest mistakes of law enforcement. Most importantly, the Task Force’s proposal finally brings the state’s standard in line with the U.S. Constitution.
The next crucial step is to breathe life into the Task Force’s recommendation via legislation. Thus far, three bills have been introduced:
· SB 5000, by Senators McCoy, Hunt, and Chase;
· HB 1000, by Representatives Doglio, Appleton, Dolan, Frame, Peterson, Gregerson, Santos, Fey, Sawyer, and Cody; and
· SB 5073, by Senators Frockt, McCoy, Pederssen, Hasegawa, Darnielle, Chase, Hunt, and Wellman.
But the bills will get nowhere without being scheduled for hearings—and this takes work from all of us. Please contact Senator Padden and ask that he schedule SB 5073 and SB 5000 for a hearing. He can be reached at: Mike.Padden@leg.wa.gov. Senator Padden is the Chair of Law and Justice Committee. Representative Goodman should also be contacted to schedule a hearing for HB 1000. Roger.Goodman@leg.wa.gov. Representative Goodman is the chair of Public Safety Committee.
Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle. His practice includes civil rights litigation against police officers for use of deadly force. He can be reached at (206) 909-3842 or email@example.com.
Amber Penn-Roco has been named a contributing editor for the National Lawyers Guild Review. The Review will soon publish her first article: "Standing Rock and the Erosion of Tribal Rights."
Tribes are suffering from an onslaught of projects that imperil their rights and their sacred duty to protect their surrounding natural resources and culture. A tribe’s rights are often attacked on multiple fronts. Projects that threaten them are often wide scale and multi-dimensional. Tribes are often forced into a battle of attrition, in which they must defend their rights before a wide variety of decision-makers. For just one project, a tribe can be forced to spend years litigating its rights, first in an administrative proceeding and then in an exhausting sequence of court hearings. At each step in the process, the rights of tribes are placed in the hands of state and/or federal agencies.
Amber’s practice focuses on tribal sovereignty issues, including environmental issues, economic development, and complex Indian Country litigation. Her experience also includes work on transactional matters, including entity formation, environmental compliance and permitting.