Gabe Galanda Named Among Best Lawyers in America for Seventeenth Straight Year

Gabe Galanda’s peers have named him to Best Lawyers in America for the seventeenth consecutive year.
Gabe is the managing lawyer at Galanda Broadman, PLLC, an Indigenous rights law firm headquartered in Seattle. He has also been dubbed a Super Lawyer by his peers from 2013 to 2023.

The American Bar Association named Gabe a Difference Maker in 2012 and recognized him with the Spirit of Excellence Award last year.

The Washington State Bar Association honored him with the Excellence in Diversity Award in 2014. The University Arizona College of Law awarded him the Professional Achievement Award and Western Washington University named him a Distinguished Alumnus, in 2018. Gabe also recently earned the University of Arizona James E. Rogers College of Law 2022-2023 Alumni of the Year Award for his extraordinary accomplishments and continued dedication to the university.

His practice focuses on complex, multi-party litigation and crisis management, representing Indigenous nations, businesses and citizens.Gabe is skilled at defending Indigenous nations and business against legal attack by governmental or private parties, as well advocating for the human rights of Indigenous citizens. He advocates against tribal disenrollment and other Indigenous human rights abuse.  He also assists Indigenous clients with transactions and strategy related to various economic diversification initiatives.

Three Galanda Broadman Indigenous Rights Lawyers Honored by Super Lawyers

Indigenous rights lawyers Gabe Galanda (Round Valley), Anthony Broadman, and Amber Penn-Roco (Chehalis) were once again honored by Super Lawyers magazine for 2023.

Gabe and Anthony were named “Super Lawyers” and Amber a “Rising Star,” all in the field of Native American Law.

With eight lawyers and offices in Seattle and Yakima, Washington and Bend, Oregon, the firm is dedicated to advancing and protecting Indigenous rights.

Kimberly Bender's Law Takes Effect

Today Kimberly Bender’s Law takes effect. As KING-5 news reports:

Senate Bill 5033, known as Kimberly Bender's Law, imposes harsher penalties for sexually abusive jail and prison guards. It goes into effect July 23.

The law would raise the status of second-degree custodial sexual misconduct from a gross misdemeanor to a Class C felony. The second-degree charge applies to cases when a corrections officer or member of law enforcement has sexual contact with a person in their custody. 

"Kimberly Bender's Law" is named after a Quileute woman who died by suicide in her Forks jail cell after reporting her jail guard, John Gray, sexually harassed her.

Gray, the corrections officer at the center of a KING 5 investigation that prompted the legislation, was convicted in 2021 of two felony and two misdemeanor counts of custodial sexual misconduct for sexually assaulting four women who were inmates at the Forks jail in 2019. He served 13 months of his 20-month sentence.

Why is WSHFC Suspending Tenant Home Ownership Opportunity?

WSHFC Director Steve Walker, testifying before Congress about LIHTC, in March 2023.

On June 23, the Washington State Housing Finance Commission (WSHFC) voted to suspend a component of its federal Low Income Housing Tax Credit (LIHTC) program that facilitates tenant home ownership. 

A WSHFC administrator explained: “we need to get our house in order.”  That is because it appears WSHFC has failed to administer the program for the last two decades.  As a result, the eventual home ownership regime that Congress encouraged in 2001 has fallen short in Washington state, if not failed entirely.

Excerpt of WSHFC June 23, 2023 meeting information.

For example, WSHFC reports that there are at least 12 LIHTC eventual home ownership projects in Washington tribal communities. Those projects involve 369 units whereby Indigenous tenants engage in home buyership (commonly called “rent to own”) over a 15-year period. 

At year 15, they are entitled to have the homes conveyed to them, as Congress intends.  But according to WSHFC, it appears that not a single one of those 369 units has yet to be conveyed an Indigenous homebuyer.  That is because WSHFC failed to regulate the home buyership component of those projects since at least 2010. The agency overlooked it all, for the last thirteen consecutive years.

WSHFC’s highly publicized failure to facilitate the conveyance of seven of those 369 units to Indigenous homebuyers at Nooksack, which are now at year 18 in WSHFC’s LIHTC program, has invited the attention of the United Nations; and, according to the Seattle Times Editorial Board, "brings shame on the . . . state."  It is against this political backdrop that WSHFC made its decision to forgo further LIHTC eventual home ownership opportunity for the foreseeable future. 

But that is the wrong approach.  Given the low income housing crisis facing Washington state, WSHFC should be leaning into federally subsidized tenant home ownership opportunity, not recoiling from it.  

More generally, taxpayers should be asking: what is happening—or, what else is not happening—at WSHFC?

Read the UN's Unprecedented Human Rights Communications to the US, Nooksack Tribe

The United Nations has intervened in the Nooksack human rights calamity, in unprecedented manner.

The UN has never before waded into what federal and tribal officials in the United States blithely call “an internal matter.” As the Seattle Times explains:

Eric Eberhard, a University of Washington School of Law professor and an expert on Native legal issues, has never before seen U.N. experts wade into “what might be viewed as an internal tribal matter,” as opposed to a disagreement between a tribe and the U.S. Not once, let alone twice, he said.

These two passages from the UN’s March 31, 2023 communication to the U.S. State Department resonate:

“As far as international human rights obligations are concerned, the State is the primary duty bearer. This entails that all level of state authorities, national, regional, local, Parish, Tribe and any other, have to abide by national and internationally recognized human rights law and standards and that the national Government has the duty to oversee that this takes place.”

"[W]e would like to emphasize that States and indigenous authorities share the responsibility for ensuring that processes and decisions by indigenous authorities accord with international human rights, particularly in the context of possible conflicts between the rights and interests of individual indigenous members and the collective rights and interest of an indigenous people or community.  We also wish to recall that indigenous institutions and justice systems have an obligation to comply with international human rights standards.”

Nor has the UN ever intervened with a U.S. tribal government that has violated internationally recognized human rights laws. The UN had this to say to the Nooksack Tribe:

“[W]e would also like to emphasize that the UNDRIP protects both individual and collective rights of indigenous peoples (art. 1) and that it needs to be interpreted as complementing - and not acting contrary - to the principles of justice, democracy, respect for human rights, equality and non-discrimination, good governance and good faith (art. 46.3).”

You can read all of the communications between the UN, State Department, and Nooksack Tribe below. It does not appear that Nooksack has responded to the UN’s March 31, 2023 communication to the Tribe.

2-1-22 UN OHRC Communication to US State Department

2-24-22 US State Department Communication to UN OHRC

3-31-23 UN OHCR Communication to Nooksack Tribe

3-31-23-UN OHRC Communication to US State Department

6-1-23 US State Department Communication to UN OHRC

6-6-23 Nooksack Tribe Communication to UN OHRC

Chambers USA Recognizes Galanda Broadman's Excellence in Native American Law

Galanda Broadman, PLLC, has been recognized among the best Native American Law firms in the country by Chambers USA 2023. Gabe Galanda was also ranked among the best Native American Law practitioners in the latest edition.

The firm, with eight lawyers and offices in Seattle and Yakima, Washington and Bend, Oregon, represents Tribal governments, businesses, and citizens in critical litigation, business and regulatory matters, especially in matters of Treaty rights, sovereignty, taxation, civil rights, and belonging.

Galanda Broadman also represents Indigenous individuals in civil and human rights matters, especially in litigation against local, state, and federal police officers and jails for the loss of human life and against tribal politicians who abrogate Indigenous citizenship rights.

Galanda Broadman is honored to be ranked among the best Native American Law firms in the country and grateful to all of our Tribal and Indigenous clients for allowing us the opportunity to earn that recognition.

Washington State Ends Racially Disproportionate Juvenile Sentencing Enhancements

Yesterday Governor Jay Inslee signed HB 1324 into law, ending Washington state’s judicial practice of automatically enhancing criminal sentences against adults based on crimes they committed as juveniles.

Nearly 400 Indigenous persons incarcerated in the Washington State Department of Corrections (DOC) are subject to a sentence that has been lengthened based upon a juvenile felony commitment. They represent 41% of the Indigenous persons in the DOC—the highest rate of unduly long sentences suffered by any racial group in Washington state.

As the ACLU explains: “Eliminating the use of juvenile records to automatically give people longer sentences will reduce racial disparities, account for discoveries in developmental brain science, and stop punishing people twice by no longer counting juvenile points in adult sentencing calculations.”

Unfortunately the Senate amended HB 1324 to eliminate the bill’s retroactivity.

The importance of retroactivity to Indigenous families, communities, and nations in Washington state is explained in a recent Everett Herald op-ed authored by Derrick Belgarde, Gabe Galanda, and Winona Stevens. The full text of that op-ed is below.

Members of the Washington State Legislature have committed to introducing a bill in the 2024 legislative session to make the new law retroactive.

Comment: Counting juvenile crimes against adults unjust to many

The Washington State Legislature has an opportunity to move beyond performative Tribal land acknowledgments and renew hundreds of Indigenous lives. HB 1324 would end automatic sentence enhancements for adults who fell down as adolescents.  But for that reform to matter—for Indigenous life to matter—it must be both forward and backward looking.

Citing the intergenerational historic trauma suffered by all Indigenous persons in our state, eight Tribal governments and Indigenous social justice organizations have urged the Legislature to pass HB 1324.

We know that youth are different from adults – it’s why we have two separate state systems of “justice” in the first place. Because a child’s brain is not fully developed, and won’t be until they are at least 25 years old, they are more likely to be impulsive, susceptible to peer pressure, and less able to weigh the causes and effects of their actions.

Those realities are compounded for Indigenous youth due to the intergenerational trauma inflicted upon Tribal communities as a result of our country’s original sin: colonization.  

The rate of Indigenous fetal alcohol syndrome is more than eight times the national average. Psychological factors, such as the fear experienced by pregnant Indigenous mothers who are battered, create physiological changes that negatively impact brain development. 

From the moment they are born, many Indigenous children suffer neurological harm.  By the time of adolescence, many Indigenous youth suffer an inability to decipher right from wrong or the repercussions of poor decisions.  And when they falter as adolescents, the Washington state criminal “justice” system catapults them into our state’s prison pipeline rather than helping them rehabilitate.

Indigenous adolescents are [three times] more likely to be referred into our state’s juvenile justice system than white adolescents.  In turn, Indigenous persons disproportionately suffer life or long sentences in Washington. The number of Indigenous persons serving long sentences is two and a half times the percentage of Washington’s Indigenous population. 

Those life and long sentences correlate to the fact that of nearly 1,000 Indigenous persons in Washington state prisons today, 41% of them suffer a juvenile felony adjudication on their offender score.  That is the highest rate of disproportionate sentencing enhancement suffered by any racial group in our state carceral system.

The sordid history of Tribal displacement and Indigenous family separation at the hands of the U.S. government has created a cycle of intergenerational trauma that manifests in substance use and domestic violence within Tribal communities. It all now compounds through mass incarceration.

As historic trauma and carceral institutionalization synergize, our peoples endure spiritual devastation and grow weaker. Those dynamics lead to institutional mindsets and cumulative group trauma and, in turn, further disproportionate criminal prosecution and incarceration. Rinse, repeat.

Still, our Tribal communities and Indigenous families are trying their hardest to break the cycle.  But our people, especially our youth, need a break.  We need time and space.  We need hope and healing.  We need our relatives, especially those who made mistakes when they were young, to come home.  Our organizations stand ready to help our relatives successfully reenter society and avoid recidivism.

Last month, the State House of Representatives passed HB 1324 to apply retroactively to people currently serving unjust life or long sentences.  But when the bill reached the Senate last week, the bill was amended so it would only apply to future cases. That was a missed opportunity for justice for our peoples, and healing for our relatives. 

If Washington sincerely cherishes Indigenous people and culture as part of our state’s fabric, or seeks to atone for the historic harms that have befallen our state’s original peoples, HB 1324 presents a real opportunity.  Our elected representatives in the Senate should pass an amendment to restore retroactivity to the bill and support a fresh start for Indigenous youth and families.

Derrick Belgarde is the Executive Director of Chief Seattle Club in Seattle. Gabe Galanda is the Chairman of Huy’s Board of Advisors in  Seattle.  Winona Stevens is the Executive Director of Native American Reentry Services in Tacoma; she serves on the Washington Statewide Reentry Council.

New State Law Guards Against WDFW Tribal Sovereignty Violations

By Gabe Galanda & Henry Oostrom-Shah 

Today, Governor Jay Inslee signed House Bill 1369 into law. The bill allows off-duty Washington Department of Fish & Wildlife (WDFW) fish and game enforcement officers to work security for private companies.

During the legislative session, the prime sponsor of HB 1369 explained that WDFW officers would be allowed to work, in their state uniforms, at “large construction projects” throughout the state, which could include projects on Tribal trust or reservation lands. 

Several Washington Tribes feared House Bill 1369, as originally proposed, would have created a Trojan Horse in Indian country: WDFW officers entering sovereign tribal lands without authorization in the guise of private security guards.  As such, Tribal rights advocates requested—and the Legislature approved—two consequential changes to the original legislation.

First, pursuant to an amendment offered by Senators Claudia Kauffman (Nez Perce) and Javier Valdez, any private employer hiring off-duty WDFW officers to work private security on Tribal trust or reservation lands “must have obtained permission from the affected federally recognized Indian tribe.”

Tribes have always protected their people by controlling who enters their territory. This amendment means that WDFW and private companies must respect that fundamental tenet of Tribal sovereignty. In recent years, WDFW has violated Tribal Treaty rights and sovereignty by entering Tribal trust and reservation lands without notice or permission. Tribes can condition their permission on training, culturally-informed procedure, and other best practices to ensure the safety of Indigenous peoples and others on Tribal lands.

WDFW Sergeant Wendy Willette testifying in Skagit County Superior Court in late 2021 regarding her unauthorized entry upon Tulalip Reservation trust lands for investigation and surveillance purposes.

Second, pursuant to an amendment offered by Representative Chris Stearns (Navajo), any WDFW officers seeking to work  private security on Tribal trust or reservation lands must have received training on the history of police interactions with Indigenous communities.

Tragically, people of color in our state suffer disproportionate violence at the hands of the police. Consider the January 2023 report that Spokane Police Department commissioned, which found that the Department used force disproportionately against Black and Indigenous Spokanites. As of late 2022, WDFW did not offer its officers any training on racism in policing or our society, or even on bias more broadly. Anti-bias training can reduce police brutality and improve citizen safety, especially in Indigenous communities.

These successful amendments show that Tribal input matters in Washington state lawmaking, especially when channeled through Indigenous leaders like Sen. Kauffman and Rep. Stearns in Olympia. House Bill 1369 also shows how the voices of the people most affected by the criminal system—Indigenous peoples and other communities of color—can and should be centered in the state legislative process.

Gabe Galanda is the Managing Lawyer of Galanda Broadman, an Indigenous rights law firm.

Henry Oostrom-Shah is a student law clerk with Galanda Broadman. After graduating from Boston University School of Law this month, he will work as a public defender in Portland, Oregon.

10th Circuit Panel Deepens Circuit Split on IHS’s Funding Obligations to Tribes

By Corinne Sebren and Henry Oostrom-Shah

June 2023 Update: The 9th circuit denied the  petition for rehearing en banc in San Carlos Apache. The 10th Circuit has denied rehearing as well.

April 2023 Update: The San Carlos Apache (9th circuit) and the Northern Arapaho Tribe (10th circuit) cases have both filed petitions for rehearing en banc.

On March 6, in Northern Arapaho Tribe v. Becerra, 61 F.4th 810 (10th Cir. 2023), a fragmented panel of the Tenth Circuit deepened an emerging circuit split.  

Now, both the Ninth and Tenth Circuits have held that third-party revenue funded tribal health care programs are eligible for reimbursement of contract support costs under the Indian Self-Determination Education and Assistance Act (ISDEAA). See San Carlos Apache Tribe v. Becerra, 53 F.4th 1236 (9th Cir. 2022). The D.C. Circuit stands alone in excluding the third-party revenue funded portions of these programs from reimbursement. See Swinomish Indian Tribal Community v. Becerra, 993 F.3d 917, (D.C. Cir. 2021).

Though two judges of the three-judge 10th Circuit panel agreed on the overall outcome of the case, all three panelists diverged on their statutory interpretations of the ISDEAA.

Judge Moritz, the author of the opinion, understood the relevant ISDEAA funding provisions to be ambiguous and invoked the Indian canon of construction, which allows a Tribe’s reasonable statutory interpretation to control. Like his colleagues in the Ninth Circuit, Judge Moritz looked to the Tribe’s ISDEAA contract itself to support an interpretation that favored full reimbursement for contract support costs associated with third-party revenue funded programs.

Judge Eid took a different path to reach the same result as Judge Moritz. She held in favor of the Tribe’s position without resorting to the Indian canon of construction. In Judge Eid’s eyes, even though the contract support cost funding scheme contemplated by the ISDEAA is “undoubtedly complex and requires a good deal of analysis,” the meaning of the statute is clear. Her concurrence notes that third-party revenues are not happenstance supplemental funds—instead, “the statutory text contemplates this additional money and requires the tribe to inject it back into its healthcare program.”

Judge Baldock, the lone dissenter, frankly acknowledged that the “complexity of the statutory scheme” barred the panel from “reach[ing] a consensus on its meaning.” However, he would have dismissed the Tribe’s complaint. Judge Baldock explained that one provision within the ISDEAA, 25 U.S.C § 5326, “plainly” limits another, 25 U.S.C. § 5325.

The vigorous debate in Northern Arapaho Tribe v. Becerra, demonstrates that there are still unsettled interpretations of the ISDEAA’s funding provisions. A lot of money is on the line for the infamously and chronically underfunded tribal health programs these provisions affect. Here, for example, the Northern Arapaho Tribe sought to recover over $1.5 million for 2016 and 2017 expenses alone.  

On March 8, 2023, IHS filed a petition in the Ninth Circuit in the San Carlos Apache case for a rehearing en banc to keep their arguments against reimbursement alive. The government's brief sounded the alarm on this still-unsettled "inter-circuit conflict implicating vast sums of money." It is likely a similar petition will be filed in the Tenth Circuit. Meanwhile, several other related cases are pending. See, e.g., Ketchikan Indian Community v. Becerra, No. 3:21-cv-00028 (D. Alaska Feb 12, 2021); Metlakatla Indian Community v. Becerra, No. 3:20-cv-00282 (D. Alaska Nov 05, 2020). These cases remain ones to keep a close watch on.

Corinne Sebren is an associate with Galanda Broadman. Her practice focuses on civil rights, Indigenous health law, regulatory analysis, and complex litigation.

Henry Oostrom-Shah is a student law clerk with Galanda Broadman. After graduating from Boston University School of Law this May, he will work as a public defender in Portland, Oregon.

Gabe Galanda Publishes "Into the Void: Indigenous American Civil Rights"

Gabe Galanda has published "Into the Void: Indigenous American Civil Rights," in the February edition of Washington Association of Justice’s Trial News.

Gabe explains how, over the last two centuries, a great many duty-based Indigenous kinship societies have transmuted into rights-based neocolonial entities and human rights violators, rendering Indigenous citizens the lone naturally born Americans who do not universally enjoy civil rights protection. 

His article can be read here. Here’s an excerpt:

Federal law superimposed an individual rights regime upon Indigenous societies beginning with early nineteenth-century treaties, which conferred personal rights in the form of lands and annuity monies as modes of assimilation. Indigenous societies and tribal nations have struggled with neocolonial, rights-based governance regimes ever since.