Gabe Galanda: Will the NIGC Help Stop Disenrollment in 2018?

Indian Gaming magazine included Gabe Galanda forecast in its "Predictions for the Indian Gaming Industry in 2018."  The text of Gabe's contribution is below.

In 2017, the National Indian Gaming Commission took the unprecedented step of intervening in a tribal disenrollment dispute, when it shuttered the Nooksack Northwood Casino for the summer.

The NIGC had previously shut down gaming facilities amidst so-called “internal tribal disputes”—at Elem, Sac and Fox and Picayune, to name a few—but never where disenrollment was at the heart of a tribe’s implosion.  As explained by Dentons—the lawyers who appeared before the NIGC on behalf the purported Nooksack Indian Tribe—the Commission’s closure of Northwood was “unprecedented.”

Only time will tell if the NIGC’s intercession at Nooksack is a bellwether.  In May 2017 the NIGC hosted Indian legal historian, Professor Robert Williams, for a lecture on disenrollment and the deconstruction of federal Indian law at the agency’s headquarters in Washington, DC.  The NIGC closed Northwood the next month.

Although, NIGC Chairman Jonodev Chaudhuri generally toes the conventional line that the Trustee should play no role in disenrollment disputes.  He also rejects the premise that the NIGC should at all regulate gaming per capita payments to tribal members—even when illegally paid or otherwise misappropriated in the disenrollment context.  While illegal gaming per capita checks were issued at both Picayune and Nooksack, the NIGC looked away from that malfeasance, closing each tribe’s casinos on other grounds.

There are, however, countervailing winds emanating from Washington, DC and Indian Country. 

Past U.S. Department of the Interior Assistant Secretary of Indian Affairs, Professor Kevin Washburn, opined this year that one federal solution to the “vexing problem” of disenrollment is “to assert diplomatic consequences, which could be fiscal in nature, equivalent to international economic sanctions, or political in nature, such as loss of federal recognition.”  The NIGC’s temporary closure of Northwood last summer does fall within that paradigm.

In the same vein, former NIGC Chairman Harold Monteau proclaimed this year that the Interior Department, including its NIGC, owes a tribe and its members a trust responsibility “to not let an illegitimate organization take, spend and distribute tribal gaming revenues, unless they are a bona fide tribal government”—especially in the disenrollment context.  To remedy such federal illegality, he recommends NIGC facility closure (or Inspector General inquiry), and FBI criminal investigation and prosecution.

Meanwhile, the Chairpersons of several gaming tribes—like Yakama, Spokane, Graton, Coyote Valley, Robinson, Ramona and Ft. McDowell—have either lent their power to the #StopDisenrollment visual advocacy movement; or publicly expressed that disenrollment is not their tribe’s way.  The Spokane and Graton tribes have gone so far as to outlaw disenrollment.  Other tribal leaders are privately denouncing disenrollment, most notably the insanity at Nooksack, to each other and to Interior and NIGC officials. 

As 2018 approaches, hopefully the NIGC will hear and heed these policy proclamations.

After all, at the end of the day, federal regulatory enforcement is a policy call. 

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.  

Navajo Times Tackles Disenrollment; Cites Diné Kinship As its Foil

The Navajo Times covered Gabe Galanda's recent lecture to students at UNM-Gallup, publishing a column titled: "Lawyer: Disenrollment Threatens Indian Country."  The article makes the point that disenrollment is not the way the Diné People; instead kinship is the norm on Navajo Nation.

An excerpt:

To mitigate disenrollment Galanda suggested kinship and a Navajo student who saw his talk pointed out that the Dine certainly have a word for that.

'We call it k'e,' Vanessa Leonard, a sophomore at UNM, said.

For Galanda, k'e is the natural foil of the imposed system of enrollment and disenrollment based on so-called 'blood quantum'...

He recognized that changing the view from blood quantum to kinship to deter disenrollment could take a ling time, but he saw a means by which Navajo could provide a kind of model as a tribe that doesn't have disenrollment.

'It seems that tribes that are still rooted in their traditions, specifically their language, their songs, their customs, aren't [disenrolling] themselves.'

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.  

Federal Judge Allows Indigenous Environmental Network's Challenge to Keystone XL Pipeline to Proceed

By Bree Black Horse

On Wednesday, U.S. District Judge Brian M. Morris allowed a lawsuit challenging the Keystone XL Pipeline to move forward.

The TransCanada Corporation applied for a Presidential Permit in 2008 and reapplied in 2012 for the Keystone XL Pipeline, which would run 875 miles from the Canadian border to connect to another pipeline in Nebraska.  The Keystone XL Pipeline will transport up to 830,000 barrels per day or crude oil from Alberta and the Bakken in Montana to existing pipeline facilities in Nebraska and eventually to Oklahoma and the Gulf Coast region.

Secretary of State John Kerry denied TransCanada’s Presidential Permit application on November 6, 2017.  Secretary Kerry determined that issuing a Presidential Permit for the Keystone XL Pipeline would not serve the national interest.  Secretary Kerry’s denial did not, however, stop TransCanada and the Keystone XL Pipeline.

Republican Donald Trump was then elected President of the United States.

Just days after being sworn into office on January 20, 2017, President Trump issued a Presidential Memorandum Regarding Construction of the Keystone XL Pipeline on January 24.  In this Memorandum, President Trump invited TransCanada “to resubmit its application to the Department of State for a Presidential permit for the construction and operation of the Keystone XL Pipeline.”

That same day, President Trump also issued an Executive Order on Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects.  In this Executive Order, President Trump announced a new general Executive Branch policy “to streamline and expedite, in a manner consistent with law, environmental reviews and approvals for all infrastructure projects, especially projects that are a high priority for the Nation.”  The Executive Order cites Keystone XL Pipeline as an example of such a high priority project.

Two days later, TransCanada resubmitted its Keystone XL Pipeline Presidential Permit application to the State Department—for the third time.

The State Department approved a Presidential Permit to TransCanada for the Keystone XL Pipeline on March 23, 2017, and issued the permit on April 4, 2017.  The State Department relied on environmental reviews conducted in 2013 and 2014 in determining whether the issuance of the Presidential Permit would serve the national interest.  The State Department did not supplement or revise either the 2013 or 2014 environmental review.

The Indigenous Environmental Network (“IEN”) and North Coast Rivers Alliance (“NCRA”) (collectively, “Plaintiffs”) filed a complaint for declaratory and injunctive relief in the U.S. District Court for the District of Montana on March 27, 2017, challenging that Presidential Permit. Indigenous Environmental Network v. U.S. Dep’t of State, No. 4:17-cv-00029-BMM (D. Mont.). 

Plaintiffs sued the State Department, U.S. Fish and Wildlife Service, and various federal officials (collectively, “Federal Defendants”) for alleged violations of the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), the Migratory Bird Treaty Act (“MBTA”), the Bald Eagle and Golden Eagle Protection Act (“Eagle Act”) and the Administrative Procedures Act (“APA”) and corresponding federal regulations.

Plaintiffs ask the U.S. District Court to order the Federal Defendants to withdraw their environmental review and Keystone XL Pipeline approvals until the Federal Defendants have complied with NEPA, ESA and APA.  Plaintiffs seek a declaration from the Court that Federal Defendants violated NEPA, ESA and APA and to issue permanent injunctive relief that would prevent Federal Defendants and TransCanada from initiating any activities in furtherance of the Keystone XL Pipeline.

The Court granted TransCanada’s motion to intervene as a defendant alongside the Federal Defendants in this litigation.

The Federal Defendants and TransCanada then together moved to dismiss Plaintiffs’ complaint for lack of jurisdiction.

U.S. District Court Judge Brian M. Morris denied those motions on November 22, 2017.  To summarize that 33 page opinion:

o   The Court rejected all of Federal Defendants’ and TransCanada’s challenges to Plaintiffs’ NEPA claims.

o   The Court found that the issuance of the Presidential Permit for the Keystone XL Pipeline did not qualify as a “Presidential action” exempt from judicial review or NEPA compliance.

o   The Court determined the Presidential Permit for the Keystone XL Pipeline is subject to judicial review and State Department must comply with NEPA in issuing a Presidential Permit for the Keystone XL Pipeline.

o   The Court concluded that the Federal Defendants and TransCanada had failed to meet their burden to demonstrate that Congress has committed to agency discretion by the law the State Department’s decision to issue the Presidential Permit for the Keystone XL Pipeline.

o   The Court also held that Plaintiffs’ had standing to bring their NEPA claims against the Federal Defendants.

·      The Court rejected all of Federal Defendants’ and TransCanada’s challenges to Plaintiffs’ ESA claims. 

o   The Court found that Plaintiffs had properly alleged their ESA claims and possessed standing to bring their ESA claims.

o   Plaintiffs’ ESA claims were not barred by sovereign immunity because the issuance of the Presidential Permit for the Keystone XL Pipeline did not qualify as a “Presidential action.”

NEPA Claims Against The Federal Defendants.

The Court first addressed the various challenges to Plaintiffs’ NEPA claims.  Federal Defendants and TransCanada argued that the issuance of a Presidential Permit constitutes a presidential action that a court may not review under the APA.  They also argued that even if the issuance of a Presidential Permit could be deemed an agency action, it represents an action committed to agency discretion by law thereby shielding it from judicial review under the APA.  Federal Defendants and TransCanada further argued that Plaintiffs lack the ability to redress their alleged injuries

The Court looked to the actions of the State Department since 2008 regarding the Keystone XL Pipeline and observed that the State Department previously acknowledged that it needed to comply with NEPA and issue an EIS when TransCanada applied for the Presidential Permit in 2008 and again in 2012.  “The logical conclusion to be drawn,” the Court determined, “is that the State Department intended for the publication of the ROD/NID and the issuance of the accompanying Presidential Permit to be reviewable as final agency action.”  The Court admonished the Federal Defendants for “now attempt[ing] to recast the State Department’s original decision to comply with NEPA, as required for a major Federal action, into a policy choice, or ‘act of grace,’ to avoid judicial review.”

Federal Defendants and TransCanada claimed the State Department acted pursuant to the President’s inherent authority under the Constitution when it issued the ROD/NID and when it issued the accompanying Presidential Permit.  Although the issuance of the Presidential Permit represents the kind of action from which legal consequences will flow, the Federal Defendants and TransCanada argued that Plaintiffs could not challenge this kind of Presidential action under the APA because Executive Order 13337 renders any decision on a cross-border project “Presidential action” that stands beyond judicial review.  The Court rejected this argument. 

The Court determined that no “Presidential action” preclusive of judicial review exists in this case.  The Court concluded that “[t]he President waived any right in his Memorandum  to review the State Department’s decision under Executive Order 13337 or to make any final decision regarding the issuance of the Presidential Permit.

Federal Defendants and TransCanada next argued that the issuance of the Presidential Permit is not subject to judicial review because Congress committed the State Department’s decision to issue the Presidential Permit “to agency discretion by law.”  The Court held that Congress did not commit this decision to agency discretion because NEPA provides a meaningful standard against which to judge the State Department’s conduct. 

Further, the Court cited the Ninth Circuit’s decision in ASSE International v. Kerry, 803 F.3d 1059 (9th Cir. 2015), which made clear that the State Department cannot avoid judicial review simply by invoking its consideration of “foreign policy” or “security factors,” as the Federal Defendants have attempted to do in this matter.  The Court emphasized that the State Department’s own regulations require compliance with NEPA for projects like the Keystone XL Pipeline and that Congress enacted NEPA for just this purpose; to ensure full analysis of potential environmental impacts of pipeline projects like the Keystone XL Pipeline.

Federal Defendants next argued that a court order enjoining the Presidential Permit unconstitutionally would infringe on the President’s authority.  The Court observed that Plaintiffs had alleged procedural injuries under NEPA similar to those alleged in Sierra Club v. Clinton, 689 F.Supp.2d 1147 (D. Minn. 2010), and that “[t]he Ninth Circuit has determined that a remedy ‘procedural in nature’ would redress a procedural NEPA injury” in Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005).  The Court thus concluded, “Plaintiffs’ alleged procedural injuries could be redressed through the procedural remedy of adequate environmental review under NEPA.”   

ESA and APA Claims Against U.S. Fish and Wildlife  

Federal Defendants further argued that the Court should dismiss for lack of standing the alleged ESA and APA violations committed by FWS in preparing the 2013 BiOp. 

The Court first addressed the standing issue.  Plaintiffs allege that the Keystone XL Pipeline would affect a host of species and that its members highly value those species.  The Court found that Plaintiffs had met the redressability requirement for the ESA and APA claims and the alleged harms confer standing on Plaintiffs based on the U.S. Supreme Court’s decision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1991).

ESA and APA Claim Against the Federal Defendants

Federal Defendants and TransCanada argued that Plaintiffs’ alleged violations of the ESA and APA should be dismissed because no waiver of sovereign immunity for the ESA citizen-suit claim exists and Plaintiffs lack standing to bring the ESA citizen-suit claim.

Although the citizen-suit provision of the ESA represents a wavier of sovereign immunity, Federal Defendants and TransCanada claimed this waiver excludes the President.  They again argued that the State Department’s issuance of the Presidential Permit qualify as a Presidential action.  “They do not” the Court held, explaining “[t]hey represent agency actions by the State Department.”

The Court noted that at oral argument TransCanada dismissed FWS’s actions regarding the preparation of the 2013 BiOp as “acts of grace.”  The Court squarely rejected this notion: “The State Department, or any other federal agency, rarely undertakes needless activities as acts of grace to our citizens.” 

The Court concluded “[t]he State Department’s publication of the ROD/NID and its issuance of the accompanying Presidential Permit qualify as agency actions subject to review by this Court under the ESA citizen-suit provision.”

Finally, the Court rejected TransCanada’s argument that Plaintiffs’ lacked standing and found that Plaintiffs had properly alleged their ESA claims.  “Plaintiffs’ injuries would be redressed,” the Court observed, “if the State Department were to set aside the Presidential Permit and engage in a more thorough analysis of the Keystone XL Pipeline’s impacts on the protected species and the protected habitat to ensure compliance with the ESA.”

The Federal Defendants have 60 days to appeal—by the end of January 2018—the denial of their motion to dismiss to the Ninth Circuit Court of Appeals.

Bree is an associate in the Seattle office of Galanda Broadman and an enrolled member of the Seminole Nation of Oklahoma.  Her practice involves complex federal court litigation. She can be reached at (206) 735-0448 or bree@galandabroadman.com

Native Lives Matter: Claiming Wrongful Death In Honor of Life

By Bree Black Horse

On November 8, 2017, Ashland County Sheriff’s Deputy Brock Mrdjenovich fatally shot a 14 year-old enrolled member of the Bad River Band of Lake Superior Chippewa Indians, as he stood outside his grandparents’ home on the Bad River Band of Lake Superior Chippewa Indian Reservation in northern Wisconsin.

The young boy’s preventable death follows similar fatal law enforcement encounters both in and out of Indian country, all of which highlight the need for adequate law enforcement funding, training, and supervision. 

In these cases, it is uncertain—in fact unlikely—that prosecutors will file criminal charges.  Even if charges are filed, it is unlikely juries would convict officers who use lethal force, as we can surmise from the series of acquittals and mistrials that have come down across the country this year.  Still, regardless of the criminal justice system’s limitations, the young boy’s family and those who also have survived the death of loved ones in this way can seek some semblance of truth, if not justice, and force lasting governmental reform, through the civil justice system.  There is hope.

Surviving spouses, parents, and other next of kin who have lost loved ones to police brutality may bring civil suits based on a law enforcement agency’s failure to adequately fund, train, and supervise its cops, as well as for various civil rights violations.  Multi-million dollar settlements and jury verdicts have resulted, which, coupled with public outrage, do motivate governments and law enforcement agencies to reform their practices.  In these ways, Native life can be honored, although the pain caused the loss never ceases.      

 I.              Ashton County Sheriff’s Deputy Mrdjenovich Fatally Shoots The Young Boy On November 8

      Deputy Mrdjenovich responded to a mid-day 911 call about a male walking down the street with a knife that matched the young boy’s description.  Ashland County authorities report that the young boy approached the Deputy while holding a kitchen knife.  Although not officially confirmed, this likely occurred after the Deputy exited his patrol vehicle with his service weapon drawn.  The Deputy alleges that the young boy did not respond to his commands to drop the knife, and instead lunged at him with the knife as the Deputy was trying to retreat.  The Deputy shot the young boy twice, killing him.

      Ashland County investigators report that the young boy appeared “despondent” in the days leading up to the incident and had returned home from school with the flu on the day of the shooting.  Those investigators also report it was the young boy who called 911 to report a man matching his description walking down the street with a knife.

      The Ashland County District Attorney appointed a special prosecutor to review the case.  The Special Prosecutor will determine whether the shooting was justified or if any changes to the Ashland County Sheriff’s Office policies are warranted.  Reform does seem needed if you consider the young boy’s death as part of a larger trend in Wisconsin, where law enforcement killings are on a steep rise.  Data reveals that in the first nine months of 2017, police in Wisconsin have killed more people than in each of the past two years and nearly twice as many as in 2015. 

      Local and national media outlets have covered the tragedy, including CNN, NBC, and the Huffington Post, and it also prompted CNN to publish, “The forgotten minority in police shootings.”  That feature story’s lead: “[T]here's another group whose stories you’re less likely to hear about.  Native Americans are killed in police encounters at a higher rate than any other racial or ethnic group . . .”

  II.           Questions Regarding Deputy Mrdjenovich’s Training and Supervision

      Although authorities have revealed few facts regarding Deputy Mrdjenovich’s actions on November 8, this fatal shooting raises many questions.  Foremost among these questions is whether this shooting was preventable—it likely was—and whether the Deputy had been adequately trained to respond to this kind of situation—it seems unlikely given the circumstances and outcome.

      Ashland County authorities have disclosed that the Deputy had worded as an Ashland County Sheriff’s Deputy for about a year before he fatally shot the young boy.  The Deputy is now on paid administrative leave.

      Ashland County authorities have not yet disclosed whether the Deputy had been adequately trained on how to properly deal with this situation.  The circumstances and outcome of this law enforcement encounter raise these training-related questions: 

·      Had the Deputy been property trained on how to hand encounters with individuals who were potentially suicidal or experiencing a mental health crisis? 

·      Had he been trained in the use of de-escalation techniques, non-lethal tactics, crisis intervention, or use of lethal force? 

·      Had he even been trained on how to properly assess the situation, or on the decision-making process that should accompany the use of lethal force?

      From the few details authorities have released, it appears that the Deputy responded to the 911 call alone.  No tribal or other Ashland County law enforcement officers seem to have responded, at least before the Deputy fatally fired multiple rounds into the young boy.  These facts also raise the following questions:

·      At any point did the Deputy call for assistance from either tribal or other Ashland County law enforcement officers?

·      Did he call a supervisor at any point during his interaction with the young to ask for guidance?  

·      Had he responded to 911 calls on the Bad River Reservation prior to this incident?

·      Why did an Ashland County Sheriff’s Deputy and not tribal law enforcement respond to the 911 call?

      It is unclear what exactly happened from the time Deputy Mrdjenovich initiated contact with the young boy, to the time the Deputy fatally shot him.  At this point, these questions remain unanswered:

·      How did the Deputy first initiate contact with the young boy?  Did the Deputy try to talk to the young boy or did he just loudly yell commands at the young boy while drawing his service weapon?  Did the Deputy immediately get out of his patrol vehicle and draw his service weapon on the young boy?

·      How did the young boy respond to the Deputy’s initial contact? 

·      Did the Deputy attempt to de-escalate the situation?

·      Why did the Deputy get out of his patrol vehicle?  Was the young boy threatening anyone or did he continue to walk down the road unresponsive?

·      Did the Deputy, by his own actions, create a situation where he would be forced to use lethal force?

·      Did the Deputy fear for his life?  Was he justified in harboring this fear?

·      Did the Deputy attempt to use non-lethal force weapons such as a Taser, pepper spray or a baton on the young boy before resorting to lethal force?

      The Special Prosecutor will likely take these facts into consideration when determining whether criminal charges should be brought against the Deputy.  More importantly, the answers to these questions may help reveal whether this tragedy was preventable and whether civil liability exists as a result of the tragedy.

  III.         Civil Lawsuit For Civil Rights Violations And Failure to Fund, Train, and Supervise

      Whether or not the Special Prosecutor brings criminal charges against Deputy Mrdjenovich, the young boy’s family and other families who have had loved ones taken from them in this way can seek justice and cause police reform through civil litigation against law enforcement officers and agencies, in either state or federal court.

      A wrongful death lawsuit against state or municipal police agencies and officers in tribal court is possible for an on-reservation police shooting of a tribal member, but would likely be hampered by a litany of jurisdictional challenges.  Civil claims against non-Indian police officers would almost certainly be challenged in both tribal and federal court based on lack of jurisdiction.  See Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985).  This is because the U.S. Supreme Court has steadily eroded tribal civil jurisdiction over non-Indians throughout the last three decades, beginning with its decision in Montana v. United States, 450 U.S. 544 (1981).  It may be years after a tribal court lawsuit is initially filed before it reaches the merits, if ever.  On the other hand, a similar lawsuit filed in state or federal court is unlikely to meet with the kind of jurisdictional issues that arise in tribal court.  Three Affiliated Tribes of the Ft. Berthold Reservation v. Wold Eng’g, P.C., 467 U.S. 138, 148 (1984) (“This Court, however, repeatedly has approved the exercise of jurisdiction by state courts over claims by Indians against non-Indians, even when those claims arose in Indian country.”). 

      A wrongful death lawsuit predicated on a fatal police shooting can include a variety of potential claims.  Possible claims against a state or municipal law enforcement officer include state tort claims, like negligence, battery, assault, outrage, and negligent infliction of emotional distress.  In particular, claims may exist for negligent training, supervision, and funding.  Police officers and their state or municipal employers also may be liable for civil rights violations, such as those guaranteed by the Fourth and Fourteenth Amendments, under 42 U.S.C. § 1983. 

      Section 1983 authorizes private parties to enforce their federal constitutional rights in state and federal court, against state and municipal officials like law enforcement officers, who acted under color of state law.  Section 1983 does not itself create or establish any federally protected rights.  Rather, that statute authorizes a claim for relief to enforce federal rights created by the U.S. Constitution.  Chapman v. Houston W.R.O., 441 U.S. 600, 608 (1979).  This means that a Section 1983 plaintiff must establish that the defendant violated a right guaranteed by the U.S. Constitution.

      The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures of the person, which includes the use of excessive force against those persons.  Tennessee v. Garner, 471 U.S. 1 (1985).  The Fourth Amendment also requires law enforcement officers to provide post-shooting medical care to victims.  Tatum v. City and Cty. of San Francisco, 441 F.3d 1090, 1099 (9th Cir. 2006).  The Fourteenth Amendment protects individuals against unjustified and unprovoked assaults committed by a law enforcement officer.  Rutherford v. City of Berkeley, 780 F.2d 1444 (9th Cir. 1986).  The Fourteenth Amendment also protects the liberty interest that children and parents have in a relationship with one another and deprivation of this “companionship and society” by a state actor without due process of law is cognizable under Section 1983.  Kelson v. City of Springfield, 767 F.2d 651 (9th Cir. 1985).

      For instance, where an officer fatally shoots an individual, there exists a potential claim under Section 1983 for excessive force in violation of that individual’s Fourth Amendment rights.  Another claim exists, also based on the Fourth Amendment, if an officer fails to provide post-shooting medical care.  Moreover, the parents or children of a victim also may have a claim based on the deprivation of that relationship, which violates the Fourteenth Amendment.  See, e.g., Strandbery v. City of Helena, 791 F.2d 744 n.1 (9th Cir. 1986); Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998).  Moreover, a state or municipality also may be liable under Section 1983 for failure to adequately train law enforcement officers and provide police departments with adequate funding.  City of Canton v. Harris, 489 U.S. 378 (1989); see also, e.g., Dunn v. Dunn, 219 F.Supp.3d 1100, 1130 (M.D. Ala. 2016). 

      Adequate training and supervision of law enforcement officers may be able to prevent deaths like the one that happened on November 8 at Bad River.  Although criminal charges are far from guaranteed under these circumstances, tribal families who have lost loved ones in this way can seek justice in the civil realm and force meaningful reform by holding these law enforcement agencies accountable in courts of law.

 Bree is an associate in the Seattle office of Galanda Broadman and an enrolled member of the Seminole Nation of Oklahoma.  Her practice focuses on defending individuals’ civil rights in federal, state and tribal courts against various law enforcement agencies. She can be reached at (206) 735-0448 or bree@galandabroadman.com

Putting A Reservation On Trial: Diminishing Returns At Wind River

By Joe Sexton

Working in Indian Country, I often hear about perils of putting a tribe’s treaty on trial.  I see those perils play out in state and federal court decisions cutting against tribal sovereign interests.  Of course, policy considerations and threats against sovereignty will compel tribes to bravely fight for what their Ancestors secured to them in “negotiations”—which usually involved a threat of mass murder looming over the Indians’ heads.  In a recent case, the tribes of the Wind River Reservation made a decision that put their treaty—and, more specifically, their reservation—on trial.  So far, the fight is not going well. 

In February of this year, a panel of judges with the United States Court of Appeals for the 10th Circuit decided that the Wind River Reservation was diminished by act of Congress in 1905.  This month, the 10th Circuit denied a petition for rehearing en banc of its decision in the State of Wyoming v. United States Environmental Protection Agency, --F.3d --, 2017 WL 5153204 (10th Cir. 2017).  The Eastern Shoshone and Northern Arapahoe Tribes—both of which jointly inhabit the Wind River Reservation—argued that this act did not reflect a clear intent by Congress to diminish their reservation.  The EPA sided with the Tribes.  The State of Wyoming, among other appellants, challenged the EPA decision and have so far prevailed. 

The case arises from an EPA decision granting the Tribes’ application to jointly administer certain programs under the Clean Air Act on the Wind River Reservation.  The application required the Tribes to show they had jurisdiction over the land they sought to administer under the Clean Air Act.  In their application, the Tribes asserted they controlled land within the exterior boundaries of the Wind River Reservation as generally reflected by the original 1868 Treaty boundaries of the reservation.  In 2011, the a solicitor with the U.S. Department of the Interior issued a legal opinion concurring with the Tribes.  The EPA relied on the decision and granted the application, which Wyoming and others appealed to the U.S. Court of Appeals for the 10th Circuit.[1] by virtue of a statutory provision permitting direct appeals from regional federal agency decisions.  

The 10th Circuit’s decision focuses on a long-standing three-part test federal courts employ in determining whether a tribe’s reservation has been diminished.  The lynchpin to that test is the notion that Congress holds the exclusive power to diminish a tribe’s reservation, but “its intent to do so must be clear.”[2]  First under this three-part test, a court first looks to the statutory text as “[t]he most probative evidence congressional intent.”[3]  The second step requires an examination of the circumstances regarding the legislative act itself that is claimed to have diminished a reservation.[4]  This step includes a review of any negotiations with the tribes involved, legislative history and reports presented to Congress.  The third step is the least important in terms of weight given to the ultimate question of diminishment.  It involves an analysis of “the subsequent treatment of the area in question and the pattern of settlement there.”[5] 

In applying this test, the U.S. Supreme Court instructs that “[a]mbiguities must be resolved in favor of the Indians, and the Court will not lightly find diminishment.”[6]

A central point of contention in this case involving diminishment of the Wind River Reservation is the lack of an amount certain offered in exchange for the lands.  This point of contention comes into focus in Judge Lucero’s pointed dissent, where he notes how this case breaks with long-standing diminishment jurisprudence and effectively invites further weaker diminishment claims against tribal sovereignty and jurisdiction:

In 1905, Congress passed an act transferring certain lands in the Wind River Reservation to the United States.  The federal government was to act as trustee by selling the lands and paying the Indians the proceeds . . . .  From this placement of property into trust status in exchange for a conditional promise of payment, my colleagues in the majority infer clear congressional intent to diminish the Wind River Reservation.  I cannot agree.  By deriving an intent to diminish absent sum-certain payment or statutory language restoring lands to the public domain, the majority opinion creates a new low-water mark in diminishment jurisprudence.

Wind River Native Advocacy Center Board Chair Sergio Maldonado indicated the tribes would appeal this ruling to the U.S. Supreme Court.  Whether the Supreme Court will hear the case remains to be seen, having recently accepted and decided a diminishment case, Nebraska v. Parker, 136 S. Ct. 1072 (2016).  Whatever the ultimate outcome, however, this case reveals the perils tribes face in simply attempting to help manage their lands.  Here, the tribes on the Wind River Reservation sought to administer programs under the Clean Air Act and wound up with their reservation on trial and a federal appeals court decision diminishing their reservation lands. 

Joe Sexton is a partner at 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.

[1] As the 10th Circuit majority decision notes, EPA final actions impacting a region are directly appealable to the U.S. Court of Appeals.  See 42 U.S.C. § 7607(b)(1).

[2] Nebraska v. Parker, 136 S. Ct. 1072 (2016).

[3] Solem v. Bartlett, 465 U.S. 464, 470  (1984).

[4] Id. at 471.

[5] South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 344 (1998).

[6] Id

NAJA Journalists Miss The Mark With Disenrollment Bingo

The Native American Journalists Association (NAJA), "in partnership with High Country News," has published "Bingo: Reporting in Indian Country Edition." 

The stated name of the game:

• "to catch overused and hackneyed ideas employed by newsrooms."
• "to bring attention to clichés and stereotypes that often appear in stories focused on tribal affairs in the United States."
• "to draw attention to stereotypes and cultural bias reporters employ when framing their stories."
• "to combat cliches in order to ensure that information is accurate, fair and thorough."

While 23 (or 22) of the 24 topics do seem cliché/stereotypical/overused/hackneyed Indian news subjects, one is certainly not: Disenrollment. (Sexual assault, as a Twitter follower observed, also seems out of place as "hackneyed." See "The Native Harvey Weinsteins.")

If anything, the stories of the 10,000 Indians who have had their indigenous human right of tribal belonging violated by their own relatives, has not been sufficiently covered by newsrooms. 

That is because the subject, which has swept Indian Country for the last couple decades, was generally taboo in tribal circles until only the last couple years.  That which is taboo (definition: "prohibited or excluded from use or practice") is hardly cliché or overused. Quite the opposite.

Hushed is exactly how several thought-leaders in Indian Country preferred disenrollment.  (Consider this archived news report: "Carole Goldberg, chair of the UCLA Native Nations Law & Policy Center, called complaints over disenrollment overblown. 'Some of the human drama is being amplified,' she said. 'The tribes concede their sovereign authority if they talk to the non-Indian world, so they don't say much, which just leaves opponents to do much of the talking.'") My and others' initial reaction to the card was to think that NAJA was urging further silence.

In a healthy Twitter exchange, bingo board co-creator Graham Lee Brewer, Editor of High Country News, assuaged that particular concern.  He explained: "The bingo card is to help people from piling stereotypes on top of each other." 

Disenrollment, however, is simply not a stereotype (definition: "a widely held but fixed and oversimplified image or idea of a particular type of person or thing").

The Cleveland Wahoo, Pocahontas, Iron Eyes Cody and tribal casinos are Indian stereotypes.  Each can be, and have been, piled upon with the other news subjects on the bingo card. 

But there's no stereotype of a disenrolled Indian, a disenrolling tribe, or disenrollment itself. 

Try to imagine a disenrollment stereotype. 

You might think of a disenrolled relative or friend. Or a particular tribe that has gotten rid of its kin, or even posthumously disenrolled its Ancestors (mark my card). 

But there's no widely held, fixed image of disenrollment. That's in part because insufficient public and media attention has been given to both disenrollment protagonists and antagonists. 

Tribal "leader"-protagonists are generally not brought into focus by newsrooms.  Why not?  Why are those politicians not named and exposed like other overlords who violate human rights? (That's a disenrollment-related subject worthy of NAJA's accurate and fair coverage.) 

Meanwhile disenrollee-antagonists are generally covered en masse. A disenrollment of only a few Indians may not even make news. While a targeted tribal family (like the Nooksack 306) or sector (like Elem's entire on-Colony population) may have a spokesperson, they're rarely given a face.  To the extent there is a disenrollee poster child, they and their family are soon forgotten once the disenrollment controversy subsides.  Where are they now? Homeless. Impoverished. Addicted. Suicidal (three more marks for my card). Dead. (There's a non-cliche story for NAJA writers.)

Including disenrollment on a bingo card is as troubling as the clichéd storytelling NAJA assails. Those 10,000 disenrollees certainly don't deserve the tongue-in-cheek.  NAJA missed the mark.  

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 Via Reddit On Mon., 11/13: “Restoring Indian Kinship: Versus Tribal Disenrollment”

Gabe Galanda will field questions relating to the subject, "Restoring Indian Kinship: Versus Tribal Disenrollment," in the Indian Country: Many Nations/One Community Reddit forum on Monday, November 13, at 11:30 AM Pacific. He is part of the forum's Native American Heritage Month series.

Five Galanda Broadman Tribal Lawyers Honored By Super Lawyers

Tribal lawyers Gabe Galanda (Round Valley), Anthony Broadman, Joe Sexton, Ryan Dreveskracht and Amber Penn-Roco (Chehalis) were each honored by Super Lawyers magazine for 2018.

Gabe was named a Washington “Super Lawyer” and Anthony, Joe, Ryan and Amber “Rising Stars,” all in the field of Native American Law.

Galanda Broadman, PLLC, was also recently named a “Best Law Firm” by U.S. News - Best Lawyers in the arena of Native American Law and Gaming Law, for the sixth year in a row. 

With eight lawyers and offices in Seattle and Yakima, Washington and Bend, Oregon, the firm is dedicated to advancing tribal legal rights and Indian business interests, and defending Indian civil rights.

"Who's Who" Expected at 15th Annual NW Gaming Law Summit in December

The Northwest Gaming Law Summit, now in its 15th year, has become a veritable "who's who" event for the Pacific Northwest and national gaming industry. It takes place this year on December 7 and 8, 2017, at the Washington State Convention Center in Seattle, Washington.  

Join Program Co-Chairs Gabriel S. Galanda, a partner and co-founder of Galanda Broadman PLLC, Frank L. Miller, a founding member of Miller Malone & Tellefson PS, and Robert M. Tull, owner of the Law Offices of Robert M. Tull.  They lead a outstanding faculty, including:

• Hon. W. Ron Allen of the Washington Indian Gaming Association
• Anthony S. Broadman of Galanda Broadman PLLC
• Nicholas Brown of Pacifica Law Group
• Hon. Jonodev Osceola Chaudhuri, Chairman of the National Indian Gaming Commission
• Scott D. Crowell of Crowell Law Office
• Geoff Freeman of the American Gaming Association
• Timothy M. Hansen of Hansen Reynolds
• Hon. Philip Hogen, former Chairman of the National Indian Gaming Commission
• Vanya Hogen of Hogen Adams
• Hon. Bill Iyall, Chairman of the Cowlitz Indian Tribe
• Paul Jacquart of Hansen Reynolds
• Jerome Levine of Holland & Knight
• James Maida of Gaming Laboratories International
• Aurene Martin of Spirit Rock Consulting
• D. Michael McBride, III of Crowe & Dunlevy
• Hon. Harold Monteau, former Chairman of the National Indian Gaming Commission
• Judith Shapiro of the Law Office of Judith Shapiro
• Hon. Theresa Sheldon of the Tulalip Tribes of Washington
• Casey Sixkiller of Sixkiller Consulting
• Christopher Stearns of the Washington State Gambling Commission
• Ernest J. Stebbins of the Washington Indian Gaming Association
• Tyrel Stevenson of the Coeur D'Alene Tribe
• Stephanie Striffler of the State of Oregon Department of Justice
• Hon. David Trujillo, Director of the Washington State Gambling Commission
• Kevin Wadzinski of Powers Pyles Sutter & Verville
• Scott Wheat of the Spokane Tribe of Indians

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He belongs to the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Galanda Broadman Again Named "Best Firm" in Native American & Gaming Law by U.S. News

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 sixth 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, “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests, and defending Indian civil rights. The firm, with eight lawyers and offices in Seattle and Yakima, Washington and Bend, Oregon, represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in matters of Indian Treaty rights, tribal sovereignty, taxation, civil rights, and tribal citizenship.