In late February, my law firm and I were barred or disbarred from Nooksack Tribal jurisdiction relative to our defense of 306 disenrollees, for want of a Nooksack business license apparently.
What I soon realized is I had seen this lawyer trick once before. What I've since realized is this lawyer trick undermines one of Indian Country's key strategies to countervail Dollar General's impending assault against tribal court jurisdiction over non-members.
In 2013, I sat on the Quinault Tribal Court of Appeals in Pura v. Quinault Housing Authority. In that case, the non-Indian plaintiffs' lawyers---esteemed Seattle civil rights firm MacDonald, Hoague & Bayless---was disqualified for want of a tribal business license:
In affirming the dismissal of Pura's case on sovereign immunity grounds per the Quinault Constitution, we avoided ruling upon the Quinault Attorney General's chicanery.
On February 24, 2016, amidst a three-year disenrollment battle that my firm and I have waged against a faction Nooksack tribal politicians, they, upon advice from the new Nooksack Tribal Attorney, passed some form of legislation to bar or disbar us for lack of a business license.
Two months later, we do not yet have notice of the new legislation he caused the Tribal Council faction to pass against us. But rumor has it that he and the Tribal Council faction dusted off a 1983 Nooksack Business Ordinance---which on its face does not apply to law firms and which had never before been utilized against anybody doing business at Nooksack---in order to jettison us.
We immediately applied for a Nooksack business license and attempted to pay the $100 fee, but were rebuffed by the Council faction, also upon the advice of the new Nooksack Tribal Attorney. We were forced to file a pro se ICRA lawsuit against the faction in Tribal Court. But he then counseled the Court Clerk ex parte and she rejected our pro se filings.
Meanwhile, the new Nooksack Tribal Attorney helped fire the Nooksack Chief Judge, misleading the faction to think that the Judge had waived Nooksack sovereign immunity.
As the Judge herself observed, "[t]hese events occurred at a critical juncture" in our disenrollment litigation against the faction. Her firing also stays our ICRA lawsuit, practically speaking. All by design.
Now, on to Dollar General, a pending SCOTUS case in which a non-Indian-owned variety store maintains that a tribal court lacks jurisdiction to hear tort claims by a teenage tribal member who worked as an unpaid intern at the store and was sexually molested by a male manager.
There, the Tribe argued that Dollar General consented to its civil authority when it obtained a tribal business license (and ground lease) to operate a store on the tribe's land. Prof. Matthew Fletcher considers Dollar General's tribal business license dispositive:
Why this case is easy should have been adamantly clear when counsel for the tribe read the language of the business license in which Dollar General consented to the application of all manner of tribal laws, and agreed to abide by those laws. It doesn’t clear any clearer or express. Nor should it have to.
As Indian Country now braces for further erosion of tribal civil authority over non-members, Judge Frank Pommersheim is dispensing "advice to Tribes to broaden business licenses to include consent to tribal jurisdiction over tort claims related to the business and consent by the business’ employees." NCAI is urging tribes to do the same, to combat Dollar General.
But tribes cannot expect federal judges to give credence to tribal business licensure as a basis for civil authority---or more generally, to tribal court integrity---if tribes and tribal lawyers wield that licensing as weaponry against opposing parties and counsel to gain an upper hand in litigation.
Tribal business licensing must serve to legitimately regulate businesses, i.e., to protect the reservation public against unsavory activity and to hold businesses accountable for their actions. It should not be used by tyrants and in-house tribal counsel to maim or kill their foes.
Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with offices in Seattle and Yakima, Washington and Bend, Oregon. Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.