Gabe Galanda to Talk Lawyer Ethics/Disenrollment at NNABA Annual Meeting

On Wednesday, April 4, 2017, at the National Native American Bar Association's (NNABA) Annual Meeting, which is being held in conjunction with the Federal Bar Association's 2018 Indian Law Conference, Gabe Galanda will deliver the "Update on NNABA Formal Ethics Opinion No. 1: 'Ensuring Due Process For All Native Americans Targeted For Disenrollment.'"

NNABA adopted Formal Ethics Opinion No. 1 in 2015 in reaction to the tribal disenrollment epidemic and, in particular, "to remind lawyers and any bar associations to which they belong that lawyers’ ethical obligations to their licensing jurisdictions do not stop at reservation boundaries."

Disenrollment scholars have cited lawyer involvement in disenrollment crusades, and the resulting void in due process at law, as a contributing cause of the epidemic.  As Dr. David Wilkins wrote in his seminal book, Dismembered: Native Disenrollment and the Battle for Human Rights:

Certain recurrent themes became evident in the course of examining these and other [disenrollments, including] the powerful role played by lawyers who work for tribal governments....

Lawyers were cited several times as being the culprits in crafting disenrollment policies, revising enrollment procedures to make it easier to disenroll, and in pursuing lawsuits that enrich law firm coffers while financially crippling those facing disenrollment.

Although disenrollment seems to be waning nationally, thanks in significant part to NNABA's ethics position according to Dr. Wilkins, the unethical lawyer dynamics that he identifies, persist in certain ongoing disenrollment sagas and in other tribal contexts.

Lawyers, especially Big Law attorneys, continue to draft tribal resolutions and ordinances that deny due process to disenrollees (here, for example); and to cause "the tribe" to otherwise violate indigenous human rights. Those lawyers, including Native attorneys, forsake their ethics and morals in order to "save the tribal client" and the lucrative billable hours--and salaries and bonuses--that comes with tribes as clients. Those lawyers give dishonest--even illegal--advice, rather than difficult, ethical advice. Those lawyers sell snake oil to the tribal client.

And those shady lawyer dynamics are not unique to disenrollment. They exist in "intra-tribal" leadership disputes, too.  There, the lawyers count votes on Tribal Council or otherwise handicap which faction will win; place their bets on that faction; and then aid and abet that's faction illegality. Because that faction controls the tribal treasury, the lawyers' bets generally don't fail.

With state bar disciplinary bodies still finding their way in Indian Country, this unethical lawyering occurs way too frequently within tribal communities. But with the likes of NNABA shining a bright light on such lawyer malfeasance, there is hope that those lawyers will eventually be rooted out.

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 can be reached at (206) 300-7801 or gabe@galandabroadman.com.

How Doth Bob Kelly Disenroll Thee? Let Me Count the Stays

Bob Kelly has written the Nooksack 306, announcing that the interim "Tribal Council officially removed your name from the roll book of currently enrolled members of the Nooksack Indian Tribe." 

The 306 have been "officially" disenrolled, without any notice or due process whatsoever.

This time there wasn't even a 1-800 disenrollment hotline to call.  

The 306 can now only seek "reconsideration."  Fait accompli.

Kelly cites a recently "ratified and reaffirmed" council resolution from 2016, which was, and remains, invalidated by the United States. 

With grand delusion, he also cites "the movement against the concept of disenrollment to turn the Tribal Court system into a constitutional court"--in other words, the cries of indigenous peoples for normative due process and equal protection at law.  Huh? 

Anyway, a federally invalidated tribal council resolution cannot be tribally "ratified and reaffirmed," especially by an interim council that lacks a constitutional quorum.

Crucially, the Kelly Faction stands in further violation of each of the following ten federal administrative stays and related Tribal Court and Court of Appeals injunctions.  It is hard to fathom how anybody could be more enjoined than the Kelly Faction at the moment. 

• St. Germain v. Acting N.W. Reg’l Dir., 17 IBIA No.16-022 (Bd. of Indian App. 2016) (Appealing “whether the Superintendent and Regional Director approved the Tribe’s proposed amend to Title 63 in accordance with the administrative rules, procedures, and laws that direct BIA decision making.”); 

• 43 C.F.R. § 4.314(a) (2004) (“No decision of an administrative law judge, Indian probate judge, or BIA official that at the time of its rendition is subject to appeal to the Board, will be considered final . . . .”); 

• 25 C.F.R. § 2.6(a) (1989) (“No decision, which at the time of its rendition is subject to appeal to a superior authority in the Department, shall be considered final . . . .”); 

• 25 C.F.R. § 2.6(b) (1989) (“Decisions made by officials of the Bureau of Indian Affairs shall be effective when the time for filing a notice of appeal has expired and no notice of appeal has been filed.”); 

• Order at 2, Michelle Roberts, et al., v. Robert Kelly, et al., No. 2013-CI-CL-003 and Belmont, et al, v. Kelly, et al., No. 2014-CI-CL-007, (Nooksack Tribal Ct. Feb. 26, 2015) ("the Parties shall maintain the status quo . . . until a decision approving Title 63 becomes final for the Department of the Interior pursuant to 25 C.F.R. § 2.6."); 

• Opinion at 9, Michelle Roberts, et al., v. Robert Kelly, et al., No. 2013- CI-CL-003 (Nooksack Tribal App. Ct. Mar. 18, 2014) (“[T]hese procedures were not properly adopted in accordance with the strict requirements of the Nooksack Constitution, and any procedural rules governing disenrollment proceedings must be adopted by ordinance and the ordinance approved by the Secretary of the Interior as provided for in the Nooksack Constitution.”); 

• Decision and Order Granting Plaintiffs’ Motion for Preliminary Injunction, Belmont et al, v. Kelly, et al., No. 214-CI-CL-007 (Nooksack Tribal Ct. June 12, 2014) (granting Plaintiff’s motion for preliminary injunction holding “[t]his approach appears to be an attempt to circumvent the very clear holdings of the Court of Appeals that disenrollment procedures . . . must be approved by the Secretary of the Interior . . . .”); 

• Order Enjoining Disenrollment Proceedings, Michelle Roberts, et al., v. Robert Kelly, et al., No. 2013-CI-CL-003 (Nooksack Tribal Ct. Mar. 31, 2014) (Court “hereby issues a permanent injunction against the Defendants enjoining them from undertaking disenrollment proceedings . . . .”); 

• Second Order Granting Request to Join April 15, 2016, Motion and Be Subject to June 28, 2016, Order, Belmont, et al, v. Kelly, et al., No. 2014-CI-CL-007 (Nooksack Tribal App. Ct. Sept. 28, 2016) (order granting Formal Indications to 127 more plaintiffs regarding Nooksack Tribal Court June 28, Order); and 

• Order Granting Requests to Join April 15, 2016, Motion and Be Subject to June 28, 2016, Order, Belmont, et al, v. Kelly, et al., No. 2014-CI-CL-007 (Nooksack Tribal App. Ct. Sept. 21, 2016) (order granting Formal Indications to 17 plaintiffs regarding Nooksack Tribal Court June 28, 2016 Order). 

The 306 could also seek contempt of court from the Nooksack Tribal Court.  But with fake judge Ray Dodge still holding his finger down on the scales of justice in Deming, that isn't an option.

Still, the 306 belong, and intend to stay right where they belong: at Nooksack and in Deming.

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 can be reached at (206) 300-7801 or gabe@galandabroadman.com.

Galanda Broadman Adds Professor Robert Hershey As Of Counsel

Professor Robert Hershey will serve as Of Counsel with Galanda Broadman and bring decades of Indian country legal experience to the growing firm.  

Robert is Clinical Professor of Law Emeritus and was the founding Director and immediate past Director of Clinical Education for the Indigenous Peoples Law & Policy Program at the University of Arizona. He practices out of Tucson, Arizona.

“Galanda Broadman exemplifies a dedication and diligence toward genuine self-determination of Native American and Indigenous societies. Their attorneys have heightened and heartfelt experiences of professional advocacy,” said Robert. “I am honored to be associated with their teaching, mentoring, litigating, and fearless representation of Native rights.”

“Professor Hershey’s four decades of legal, trial, and clinical advocacy for the protection of traditional indigenous values and ways is unmatched,” said Gabe Galanda, the firm’s managing lawyer.  “We couldn’t be prouder to have him on our team.”

Robert received his law degree from the University of Arizona College of Law in 1972. He then worked as a Staff Attorney for the Fort Defiance Agency of Dinebeiina Nahilna Be Agaditahe (DNA Legal Services) on the Navajo Indian Reservation.

From 1983 to 1999, he served as Special Litigation Counsel and Law Enforcement Legal Advisor to the White Mountain Apache Tribe, and, from 1995 to 1997, as Special Counsel to the Pascua Yaqui Tribe. From 1998-2002 he was a special litigation counsel to the Gila River Indian Community.

Robert also serves, now in his twenty-ninth year, as Judge Pro Tempore for the Tohono O’odham Judiciary.  He was an Associate Justice for the Yavapai-Prescott Indian Tribal Court of Appeals and a Deputy Judge Pro Tempore for the Colorado River Indian Tribes.

As a practitioner, in addition to litigating for Tribes and Native Nations, Robert has conducted seminars for tribal law enforcement agencies in matters such as tribal jurisdiction, evidence, search & seizure, game and fish legislation, juvenile diversion, jail management, victim-witness support, and use of force, including firearms. He co-wrote the Bureau of Indian Affairs Law Enforcement Policies and Procedures.

Galanda Broadman PLLC, is an American Indian-owned law firm with offices in Seattle, Spokane and Yakima, Washington and Bend, Oregon. The firm is dedicated to advancing tribal Treaty and other sovereign legal rights, and Native American civil rights and Indigenous Peoples’ human rights.  Robert is an independent attorney who will associate with the firm on a case-by-case basis.

Galanda/Dreveskracht's Disenrollment Law Review Article Named Top 100 All-Time

Ryan Dreveskracht and Gabe Galanda, at left, at Nooksack, facing off with the Tribal Police Chief

Gabe Galanda and Ryan Dreveskracht's Arizona Law Review article, "Curing the Tribal Disenrollment Epidemic: In Search of a Remedy," was recently cited as one of "the 100 most influential Indian law scholarly pieces from the last thirty years."

Professors Grant Christiensen and Melissa Tatum listed Gabe and Ryan's article as #64 of the Top 100 all-time, in their forthcoming Tulsa Law Review article, "Reading Indian Law: Evaluating Thirty Years of Indian Law Scholarship."

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 can be reached at (206) 300-7801 or gabe@galandabroadman.com.

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle.  His practice includes civil rights and wrongful death litigation.  He can be reached at (206) 909-3842 or ryan@galandabroadman.com. 

New York Times Cites Gabe Galanda Re: Tribal Opioids Litigation

The New York Times quoted Gabe Galanda's scholarship in a recent article: "In Opioid Battle, Cherokee Want Their Day in Tribal Court."

The article cites a 2003 article Gabe wrote for the American Bar Association, Getting Commercial in Indian Country, in reference to Montana v. U.S., 450 U.S. 544 (1981):

Tribal courts generally do not have jurisdiction over people who are not Native Americans. The Cherokee are relying on a 1981 exception created by the Supreme Court: If a non-Indian business has a commercial, consensual relationship with the tribe, the Court said, the tribe may assert authority.

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 can be reached at (206) 300-7801 or gabe@galandabroadman.com.

Bree Black Horse Teaches ACLU-WA How to "Get to Know Indian Country"

Yesterday Bree Black Horse taught a CLE at the Seattle, Washington chapter of the ACLU about how to approach outreach and community speaking events with local tribes; consideration of the history of Washington state tribes and reservations; and techniques for culturally competent interactions. 

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. She can be reached at (206) 735-0448 or bree@galandabroadman.com.

Ryan Dreveskracht Talks Civil Rights to UW Law, Societies & Justice Students

Last night, Ryan Dreveskracht spoke at the UW Law, Societies & Justice Department's Career Night, regarding his career as a tribal and civil rights attorney. 

Ryan is currently litigating several civil rights and wrongful death cases against county police officers and jail officials, in federal district and state superior court.

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle.  His practice includes civil rights and wrongful death litigation.  He can be reached at (206) 909-3842 or ryan@galandabroadman.com. 

Bree Black Horse To Discuss Tribal Belonging & Disenrollment at UNM Indian Civil Rights Conference

Bree Black Horse will speak on "ICRA and Tribal Issues: Belonging and (Dis)Memberment," at 50 Years of the Indian Civil Rights Symposium that the UNM School of Law is convening at Isleta Resort & Casino on March 8-9, 2018. 

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. She can be reached at (206) 735-0448 or bree@galandabroadman.com.

Washington State Legislature Introduces Bill for Missing and Murdered Native Women

Bree Black Horse pictured, wearing black, at right.

By Elisabeth Guard

On January 20, 2018, in Seattle, Washington, Native women led the Women’s March to call attention to the epidemic of missing and murdered Native women in the United States and Canada. 

Native women in the United States experience some of the highest rates of sexual assault in the Nation: more than half of Native women will be the victim of domestic violence or sexual assault; four out of five are expected to encounter violence in their lifetimes; one in three will be raped in their lifetime; and the murder rates of Native women exceed ten times the national average in some tribal and urban communities.  The most alarming data comes from the Center for Disease Control and Prevention, which reported that in 2016 the third-leading cause of death for Native women between the ages of ten and twenty-four was murder.

On January 29, 2018, Representatives Gina McCabe, Mia Gregerson, Melanie Stambaugh, Derek Stanford, Kristine Reeves, Mary Dye, Andrew Barkis, and Senator Maureen Walsh introduced HB-2951, to do something about it.

The bill seeks to “[o]rder[] a study to determine how to increase reporting and investigation of missing Native American women.”  HB-2951 requires that “[t]he Washington state patrol must conduct a study to determine how to increase state criminal justice protective and investigative resources for reporting and identifying missing Native American women in the state.” 

Washington state patrol must work in collaboration with tribal law enforcement officers and the federal department of justice to increase reporting, information sharing, and coordination of resources.  “By December 1, 2018, the state patrol must report to the legislature on the results of the study, including data and analysis of the number of missing Native American women in the state, identification of barriers in providing state resources to address the issue, and recommendations, including any proposed legislation that may be needed to address the problem.”

The Canadian government has taken a similar approach to investigating the epidemic of missing Native American women in Canada.  In December of 2016, Canadian Prime Minister Justin Trudeau announced a long-awaited national inquiry into the disappearances and murders of indigenous women.  Although the Royal Canadian Mounted Police have officially counted about 1,200 cases of missing or murdered Indigenous women over the past three decades, the research actually suggests that the total number could be as high as 4,000.  This inquiry has been heavily criticized for failing to include the families of the missing or murdered women and many question whether the inquiry will be able to uncover the root causes of why indigenous women are murdered or go missing at such high rates.  

Although in the U.S. the Violence Against Women Act and the Tribal Law and Order Act have helped bring attention to the high rate of violence against Native women, there is no system to collect comprehensive data regarding the number of missing and murdered Native women. 

The introduction of HB-2951 is a first step for Washington State in addressing the missing Native women within the state.  While there is not a clear-cut path forward to ending the epidemic of missing and murdered Native women, gathering data that provides correct figures of the gravity of this crisis is vital.  I remain hopeful that HB-2951 is only the beginning and that Washington will avoid the pitfalls that has plagued Canada’s inquiry; however, it is still vital for Native activist to continue to speak about this issue and keep pressure on Washington’s legislatures. 

You can provide comments on HB-2951 here.

Elisabeth is an associate in the Seattle office of Galanda Broadman.  Elisabeth’s practice focuses on complex federal court litigation. She can be reached at (206) 557-7509 or elisabeth@galandabroadman.com.

It’s Time To Change Washington’s Wrongful Death Laws

By Ryan Dreveskracht

At common law, a decedent’s claim of wrongdoing did not survive the person’s death, and there was no right of recovery when a person died due to another’s negligence.  In order to provide relief in these situations all 50 states, including Washington State, promulgated statutes that create actions for wrongful death and survival.  But Washington, unlike 47 of those states, does not allow recovery to parents and siblings when their family member is needlessly killed.  That, however, may soon change.

Under a wrongful death action, the decedent’s estate bring a cause of action on behalf of specified beneficiaries for damages they suffered as a result of the decedent’s death.  

For primary beneficiaries—the decedent’s spouse or domestic partner and children—actual pecuniary losses are recoverable, including intangible losses such as the loss of the decedent's support, services, love, affection, care, companionship, society, and consortium. Secondary beneficiaries—the parents and siblings—are entitled to recover only if: (1) there are no primary beneficiaries; (2) they were dependent on the decedent for support; and (3) they resided within the United States at the time of the decedent’s death. 

The large majority of unmarried, childless adults have no primary or secondary beneficiaries, and there can thus be no recovery.  This is especially true in families of color or who live in poverty, where the so-called nuclear family is not the predominate form of family. In the tribal setting, for example, the loss of Indian life should be grieved by the deceased's non-nuclear family as needed.

Under the survival statutes, any cause of action that the decedent could have brought prior to death may be brought by the decedent’s estate and is for the benefit of, and passes through, the decedent’s estate.  The recoverable damages for the estate are the pecuniary losses to the estate such as loss of earnings, medical and hospital expenses, and funeral and burial expenses. In addition, the personal representative may recover, on behalf of the same beneficiaries listed under the general wrongful death statute, damages for the pain and suffering, anxiety, emotional distress, and humiliation personal to, and suffered by, the decedent.  

Again, though, because a large majority of unmarried, childless adults have no primary or secondary beneficiaries, and there can be no recovery in these cases.

This is all to say that under Washington State’s laws, wrongdoers receive a free pass because they happened to be responsible for the death of the “right” person, i.e. an unmarried childless person.  Dean William Prosser, perhaps the most respected legal authority on the topic in modern history, famously wrote that Washington State’s law makes it “cheaper for a defendant to kill a plaintiff than to injure him.”

It’s been said that when someone you love dies, you don’t lose them all at once; you lose them in pieces over time. As time goes on, in other words, the depth of a loss becomes more and more apparent.  And no amount of monetary “compensation” will ever bring a lost loved one back or make up for the nights that parents and siblings cry themselves to sleep. 

But this doesn’t make it right for losses and suffering to be dismissed simply because a loved one lived beyond his or her 18th birthday.  Families do not stop loving or missing the day that a person they turns 18.  The loss doesn’t hurt any less.  There is no reason for families—just because their loved one was over 18, unmarried, and without children—should not have the same right to seek accountability that other families have.

This may all change soon, however.  On January 8, Senators Hasegawa, Rolfes, Frockt, Pedersen, Hunt, Nelson, Darneille, Miloscia, Chase, Saldaña, and Kuderer introduced SB 6015, legislation that would bring Washington State in line with the 47 other states in the country that allow for recovery to parents and siblings when their family member is needlessly killed. 

Representatives Santos, Goodman, Johnson, McBride, Sawyer, Fitzgibbon, Dolan, Orwall, Macri, Frame, Jinkins, Ormsby, and Pellicciotti introduced a companion bill in the House on the same day. 

The proposed legislation is designated as remedial and applies retroactively to all claims that are not time barred, as well as any claims pending in any court on the effective date of the legislation. 

My colleagues and I at Galanda Broadman have great empathy and compassion for people who are harmed through the negligence or misconduct of others, and are vitally committed to helping these victims receive the justice they are due in America’s courtrooms.  We are constantly in awe of the brave individuals and families who have taken on reckless corporations, dangerous people, and irresponsible government. 

It’s because of their sacrifices and steadfast efforts that we enjoy many of the protections that keep us safe today.  Which is why we support this legislation, and urge others to do the same.  The citizens of the state of Washington—we all—deserve this legal protection.

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle.  His practice includes civil rights and wrongful death litigation.  He can be reached at (206) 909-3842 or ryan@galandabroadman.com.