A Native American's Immigrant Song

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"We may be different in color or origin but we are connected in one way or another." -- Lower Elwha Klallam Chairwoman Frances Charles, Canoe Journey 2017

The Dreamer controversy got me thinking, about how we Natives are in fact more connected to immigrants than we might realize, or admit.  

So I wrote a "song" about it.  Here's my riff on it all:

First, I'm no fan of the barbs or memes that Indians are the only people who are not immigrants to the United States.  

That may have been true in 1492 but unless you're a full-blooded Indian---the overwhelming majority of us aren't---you descend from immigrants too.  

Speaking of 1492, there are oral accounts of Columbus' arrival to Haiti, wherein the "Indios" actually welcomed him and his people ashore. Indeed, as the image above suggests, America's Indigenous Peoples have generally been more inclusive of immigrants than we might believe.

So let's end all of the divisive rhetoric about "us" (Indians) versus "them" (immigrants).

Second, let's realize that birthright citizenship, as guaranteed by both the U.S. Constitution's 14th Amendment and 8 U.S.C. 1401, is a tie that binds certain undocumented persons---like so-called anchor babies---and Indians.  

Simply, if you are "a person born in the United States," you are a citizen of the United States.  8 U.S.C. 1401(a).  Anchor babies, i.e., born unto the land, are United States citizens even though their parents may be "unauthorized."  Id.

Likewise, if you are "a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe," you are a citizen of the United States (8 U.S.C. 1401(b)). Indian babies, born unto the land, are also United States citizens under federal law (id.), and may also be a Tribal citizen under many Tribal laws like IRA constitutions that guarantee citizenship at birth.

Third, let's recognize that Indians also immigrate, from one tribal nation to another, through a process called relinquishment.  With tribal peoples having inter-married for generations, it is very common for an Indian to have ancestral ties to multiple tribal nations.

In this day and age, Indians are frequently relinquishing their citizenship with one tribal nation, and becoming a citizen of another.  Although this mode of immigration is often fueled by per capita dollars, it is nonetheless an Indian's prerogative to relinquish and enroll elsewhere.

Fourth, let's also appreciate the potential commonality between Dreamers and too many Indians. Dreamers are persons who were brought to America as children by undocumented parents or others. To many Dreamers, America is the only home they have ever known.

Many Indian children are born away from their Tribe's homelands---as the United States has intended since 1887---but "brought home" to their Tribe and enrolled by their parents or others. To those Indians, their Tribe is the only home they have ever known.  Now several of those Indians are being told, by "leaders" of their Tribe, that they don't belong; they are being disenrolled. 

President Trump threat to deport 800,000 Dreamers after ending DACA makes me think of those Indians.  Much like Autocrat #45, who stands poised to jettison Dreamers from their only home, tribal autocrats are today kicking out thousands and thousands of Indians from their only homes. 

Unconscionably, what President Trump proposes to do, and what as many as 80 tribal autocrats (or autocracies) have already done, is to separate children from their parents and families, and nuclear families from their extended families; and to displace them all from their homes.

We as Native people, knowing full well the traumatic effects of separation and displacement, should raise our voice against the injustice we are witnessing throughout the land. 

This is my immigration song.

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 is also of Austrian, Scandinavian and Portugese descent.

Indian Country Today Helped Shatter the Disenrollment Taboo

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For nearly the last decade, as disenrollment turned into an epidemic throughout Indian Country, our leading news outlet, Indian Country Today/Media Network, tackled the subject head on.

When ICT began doing so, disenrollment was taboo---as Dave Palermo put it, disenrollment was our "dirtiest secret." And for the most part, disenrollment was being carried out by tribes---gaming tribes---who might buy advertisements with ICT.  But ICT never shied away.

Take a look for yourself. Go to ICTMN's website and search "disenrollment."  Then peruse any of the 452 search hits.  You'll find:

  • Leading disenrollment scholarship by Prof. David Wilkins, which led to his recent publication of a book on the topic, "Dismembered";
  • Incisive political cartoons, at least six, by Marty Two Bulls, like:
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Meanwhile, Indianz.com and Pechanga.net not only posted ICT's stories, but those tribal news sites also wrote or posted various other disenrollment stories over the last several years.  

Most recently, Tribal Business Journal and Global Gaming Business Magazine commissioned and published disenrollment features.  For its part, Tribal Business Journal ran a three-part series. Those ad-dependent news magazines would not have touched the subject even three years ago.

ICT is not giving itself too much credit when, announcing its "hiatus" today, it says:

ICTMN’s reporting has also helped shape political debates and policy decisions around our community’s priorities—and that will have an enduring impact on those debates and decisions in the coming years.

ICT's reporting has helped us realize, quite simply, that disenrollment is not our way; and never has been.  ICT has helped cast shame upon the practice---specifically those tribal "leaders" who seek to get rid of their kin with ulterior motive---and emboldened many other Indians to also cast shame upon those of our peers who deserve it.  ICT has helped helped deter the cancer that is disenrollment from spreading further, to more tribal reservation or rancheria communities.  

Indeed, since early 2016, there has not been a new mass disenrollment that I know of.  That's after nearly 80 tribes engaged in the practice over the prior decade---approximately 8 tribes per year.

Maybe ICT was too honest for it's own good.  Maybe that's why, unlike certain other tribal magazines, ICT couldn't sustain itself with lucrative gaming advertising dollars.  Maybe.

In any event, "ICTMN proved that we do not have to sit idly by."  ICT most certainly did not sit silent amidst the disenrollment epidemic.  Neither should any of us.

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.  I prefer Indian Country Today, to Media Network; thus the "ICT" references.

Gabe Galanda's Editorial Review Featured for "The Great Vanishing Act: Blood Quantum and the Future of Native Nations"

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Gabe Galanda was asked to review the new book, The Great Vanishing Act: Blood Quantum and the Future of Native Nations.  His editorial review is featured:

'The Great Vanishing Act provides incisive criticism and warning regarding colonially inspired and federally promulgated modes of American Indian assimilation and annihilation - most notably the Anglo-American racial notion of blood quantum.' — Gabriel S. Galanda, Galanda Broadman, PLLC

 

Order this must-read scholarship on Amazon today.

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.

Galanda, Dreveskracht's Disenrollment Scholarship Cited in New Human Rights Book, "Understanding Statelessness"

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Gabe Galanda and Ryan Dreveskracht's law review article, "Curing the Tribal Disenrollment Epidemic: In Search of a Remedy," has been cited at length in a new human rights book, Understanding Statelessness.  An excerpt:

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Understanding Statelessness offers a comprehensive, in-depth examination of statelessness. The volume presents the theoretical, legal and political concept of statelessness through the work of leading critical thinkers in this area. They offer a critique of the existing framework through detailed and theoretically-based scrutiny of challenging contexts of statelessness in the real world and suggest ways forward.

 

Gabe Galanda Named Among America's Best Lawyers for 12th Straight Year

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Gabe Galanda has been selected by his peers for inclusion in the 2018 edition of The Best Lawyers in America® in the areas of Gaming Law and Native American Law, for the 12th straight year.  He has now been selected to The Best Lawyers in America® every year since 2007.

Gabe’s practice focuses on complex, multi-party litigation, business controversy, and crisis management, representing tribal governments, businesses and members.

He is skilled at defending tribes and tribal enterprises from legal attacks by local, state and federal government, and representing plaintiffs and defendants in catastrophic injury lawsuits.

Gabe handles Indian civil rights controversies for tribal members, particularly those involving Indian citizenship rights, as well.  He also frequently represents tribal families in federal civil rights litigation against police officers and jailers for the wrongful death of Natives and inmates.

The Best Lawyers in America® is regarded as the definitive guide to legal excellence in the United States. Gabe’s selection was based on a peer-review survey, which all told comprises more than 4.9 million confidential evaluations by top attorneys throughout the country.

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.

Gabe Galanda to Address Tribal Business Leader Ethics at NCAIED's Tulalip Conference

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On Tuesday, September 5, 2017 from 2:45pm-4pm, Gabe Galanda will speak on "Management and Leadership: Ethical Decision Making in Business."  The program description:

Tribal elected and business leaders are faced with a host of challenges when engaging in modern economic development, not the least of which are issues of ethics, morality, legality and tradition.  This panel will explore how tribal leaders may navigate the myriad of ethical, moral and legal issues associated with many of Indian Country's hottest areas of commerce: payday lending; tobacco, liquor and firework sales; marijuana cultivation and sales; gaming; land development; and taxation.

Information about NCAIED's Northwest Enterprise Development Conference, being held September 4 - 7, 2017 at the Tulalip Resort Casino in Tulalip, Washington, is here.

Disenrollment As Cottage Industry

In the New York Times Magazine story that broke earlier this year, "Who Decides Who Counts as Native American?," Professor Rob Williams described disenrollment as a cottage industry:

Robert Williams, chairman of the Indigenous Peoples Law and Policy Program at the University of Arizona, told me that some tribes have recently begun to hire membership consultants to help trim their rolls. “It’s almost become an industry in some parts of Indian Country,” he said.

In a recent interview about their new groundbreaking book, Dismembered, Dr. David Wilkins and Shelly Wilkins expose the players in that industry:

What was the most interesting thing you learned from writing the book?

DEW & SHW: Perhaps the most shocking thing we learned was the amount of money outsiders were making from fomenting discord within Tribal Nations. Non-native attorneys who keep the conflicts going in order to bill more hours, outside consultants—self-professed enrollment experts—who organize seminars or directly advise Tribal leaders on ways to “clean-up their rolls,” financial advisors who calculated how much further per-capita payments would go if membership were to be reduced.

It is not merely "Non-native attorneys" who churn billable hours in times of intra-tribal strife; Native lawyers do, too.  But at least as to disenrollment, there do now appear to be fewer reputable Indian law firms who will advocate for tribal politicians who seek to jettison their kin.

As Robin Ladue observed in the most recent edition of Tribal Business Journal, in an article titled, "Disenrollment Sparks Litigation, Economic Issues":

Some attorneys, including Robert A. Rosette, founding partner of Rosette LLP, say disenrollment procedures are a part of tribal sovereignty, but attorneys who assist or work for tribal councils must follow their own laws and not violate due process.

The National Native American Bar Association (NNABA) issued a resolution in 2015 that it is immoral and unethical for lawyers to encourage or take part in disenrollment processes that lack adequate due process, equal protection or a remedy for the violation of the civil rights of tribe members.

The Indian legal profession does seem to be increasingly turning away disenrollment business, finding it illegal, unethical or immoral---or simply distasteful.

But those "outside consultants" still appear undeterred from engaging in disenrollment commerce, perhaps as they are not subject to ethical or regulatory restraint; or without a moral compass.  Disenrollment auditors, in particular, continue to help tribes "'clean up their rolls.'"

That for-profit auditors, CPAs and financial advisors now help dictate who belongs, should repulse us all.  Beyond that, the disenrollment industry should be disinvited from Indian Country.

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. 

 

 

 

"The American Indian Middle Class," by Gabe Galanda

As recently published in the book, An Economic Encyclopedia of Progress and Poverty, Gabe Galanda's article, "The American Indian Middle Class," is here.  

The piece discusses, from a predominately legal perspective, how various happenings over the last 125 years shaped today's tribal middle class:

  • The Indian assimilation era that began in the 1880s
  • The Urban Indian Relocation Program of the 1950s
  • The Fish Wars of the 1960s and 1970s
  • Reagan Era Indian policy of the 1980s
  • Indian gaming and per capita income since the 1990s
  • Disenrollment since the 2000s

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. 

Negative Ninth Circuit Indian Property Tax Precedent in the Making

Last Thursday a Southern California federal court handed down an Indian property tax ruling that is of potentially significant negative implication for tribes in the Ninth Circuit.

U.S. District Court Judge Dolly Gee issued a summary judgment decision in favor of Riverside County and against the Agua Caliente Band of Cahuilla Indians, affirming state possessory interest taxes (“PIT”) assessed by the County and imposed on non-Indian lessees who use and occupy Indian trust land within the Agua Caliente Indian Reservation.  

A couple things of note:

First, the Court ruled that Section 465's preemption applied only to "lands or rights that were placed in the United States’ name in trust for the Indian’s benefit under the IRA or the Act of July 28, 1955—neither of which are at issue." This is a significant clarification, given that the best, if not only, way to win Indian tax preemption cases these days is under a federal statute or regulation.

Second, the United States, as amicus curiae in the case, contended "that the comprehensiveness of the federal and regulatory scheme governing the leasing of Indian land, coupled with the federal interest in tribal sovereignty, 'weigh heavily against state and local taxation.'” But although finding those federal interests "strong" under Bracker, the Court found that they "must nonetheless yield to . . . state interests." United States intervention--whether as a party or friend of the court--had previously been seen as tipping Bracker balancing in favor of tribes.

Expect that if the decision stands on appeal to the Ninth Circuit Court of Appeals, state revenue agents will have a field day enhancing use taxes like PIT, to circumvent property tax preemption. 

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.