Forgiving--And Forgetting--Elizabeth Warren

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I was among those who thought Sen. Elizabeth Warren was an ethnic fraud—more specifically a “box checker” who claimed Cherokee ancestry to ascend to the Harvard Law School faculty.

But the Boston Globe, in its feature, “Ethnicity not a factor in Elizabeth Warren’s rise in law,” convinced me otherwise. While I wish she would not have waited six years to turn over her teaching records, I am persuaded by the Globe that Sen. Warren never checked any “Native American” box for professional gain—especially not at Penn and not at Harvard.

So I forgive Sen. Warren for claiming tribal ancestry, and am now anxious to forget the entire “Cherokee grandma” controversy that surrounds her. It’s time we all forgive and forget.

The criticism I have about the continued critiques of Sen. Warren’s ancestry is that they cite a void of genealogical documentation for her great-great-great grandma from the late 19th Century—the types of documentation that either never existed for grandma’s in the late 1800s; or are demonstrably incomplete as to Indians who endured that genocidal time in American history.

Folks ask: “Where is her claimed Cherokee great-great-great grandma’s marriage license application or marriage license?” “Why aren’t any of her ancestors listed on any rolls of Cherokee Indians dating back to the early 1800s?” “Where is any proof of her claimed Delaware blood?”

The flaw in these questions is that they fail to appreciate or acknowledge that so-called vital records, especially those for women or Indians who lived in the 1800s, are scarce to non-existent.

They also ignore that federal Indian rolls and censuses have been proven inherently incomplete—lacking countless tribal ancestors. Angelique A. EagleWoman & Wambdi A. Wastewin, Tribal Values of Taxation Within the Tribalist Economic Theory, 18 Kan.J.L. & Pub. Pol’y, 1, 7 (2008).

Truth be told: If such historic federal, state, or local government documentation is the metric of tribal belonging in 2018, most current tribal members would not measure up. Nobody Native I know has their great-great grandma’s marriage license or great grandma’s birth certificate.

Sen. Warren claims she first learned of her Cherokee and Delaware ancestry from her grandma. This is precisely how most of us learned we are tribal: our grandmas told us. That is precisely how I first knew I was Nomlaki and Concow: my grandma told me.

That, quite simply, is kinship.

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External issues surrounding our identity and imagery are important. Misappropriated tribal ancestry does have negative psychological impacts on Natives today, particularly our youth. But tribal cultural misappropriation is hardly the biggest existential threat to Indian Country.

The single biggest existential threat is now . . . us. By that I mean our continued internal reliance on colonial-turned-federal modes of tribal termination and assimilation—most notably, blood quantum, residential criteria, and federal censuses/rolls—as measures of tribal belonging.

If we continue to self-define ourselves by using the colonizer’s genocidal tools, we will eventually “kill the Indian” ourselves. Disenrollment—with 80 tribes now engaged in the practice—is a glaring example, with greed-addled tribal politicians wielding those tools to self-terminate their own kin.

So let’s all forgive and forget Sen. Warren. Let her cherish her grandma’s teachings and what she believes is her kinship. Let’s instead focus or energies our teachings and our kinship.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.













The BIA's Blood Trouble

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Last month this letter from the Great Plains Acting Regional Director to the Cheyenne River Sioux Tribe sent shockwaves through Indian Country. It appears similar letters were sent to tribes by BIA Regional Directors throughout the country.

The BIA informed the tribes that the Bureau intended to abruptly its issuance of issuing Certificates of Indian Blood (CDIBs), saying a “tribe’s right to define…degrees of Indian blood is a central aspect of tribal sovereignty.”

Let’s unpack this.

First, we never defined ourselves according to blood degree until the U.S. foisted that racial formation/fiction upon us in the late 1800s and most notably via the IRA in 1934. The BIA should not get it twisted by suggesting that the acts of defining Indian blood or issuing certificates of belonging were traditionally any aspect of tribal sovereignty.

Although some tribes have “638’d” the issuance of CDIBs as the letter alludes, if a practice wasn’t indigenous to us, it’s disingenuous to dub it an act of tribal self-determination today. It is instead an act of delegated federal power that, like disenrollment, Washington, DC bureaucrats created to extinguish us—and that tribal politicians now wield to “kill the Indian” themselves.

Second, as Paul Spruhan has explained in his seminal scholarship on CDIBs, the BIA has been issuing CDIBs since the 1930s, albeit without any Congressional authority to do so. Rising indigenous activist Emilio Reyes has uncovered BIA documents since the mid-1960s that form the agency’s CDIB “policy.”

Even without Congressional authority, such an internal policy is binding upon and actionable against the BIA under the Administrative Procedures Act (APA). Confederated Tribes and Bands of Yakama Nation v. Holder, No. 11-3028, 2011 WL 5835137, at *3 (E.D. Wash. Nov. 21, 2011) (“The internal policies that can bind an agency and give rise to a cause of action under the APA are not limited to only those rules promulgated pursuant to notice and comment rule making.”).

(Also actionable under the APA is any withdrawal of the CDIB policy by the Bureau, without proper tribal consultation. Lower Brule Sioux Tribe v. Deer, 911 F.Supp. 395 (D. S.D. 1995))

Because so many federal and tribal decisions regarding tribal belonging are non-reviewable—as a result of another racial formation/fiction, the U.S. Supreme Court’s decision in Santa Clara v. Martinez, 436 U.S. 49 (1978)—an Indian’s legal right to challenge any arbitrary, capricious, or otherwise unlawful federal agency action relating to his or her CDIB could be vitally important.

Third, the BIA’s attempt to suddenly withdraw from the CDIB business, if successful, will have a seismic impact on Indian Country. Spruhan correctly analyzes CDIBs in “the current environment surrounding disenrollment.” Indeed, the Bureau’s proposed withdrawal will—not may, will—“feed into the ongoing controversies over tribal recognition, membership, and disenrollment.”

The possibility of tribes taking over CDIB issuance—again, a non-indigenous way—is especially worrisome. The BIA would essentially be authorizing tribes to unilaterally “define” or redefine “degrees of Indian blood” or amend or invalidate an existing CDIB.

As Spruhan warns:

the BIA should also seriously consider whether authorizing the unilateral amendment or invalidation of a CDIB is necessary or prudent, particularly when the power to take such action is diffused among numerous BIA offices and 638 tribal contractors. As shown by recent controversies, disenrollment is a serious issue, and empowering the unilateral revision of CDIB documents has the potential to exacerbate the phenomenon.

We throughout Indian Country are still reeling from the Obama Administration’s abrupt decision, “[f]rom behind closed doors,” to extricate itself from disenrollment activity, in the spring of 2009. See “The Obama administration's disenrollment legacy.” What ensued?

During the next seven years of the Obama Administration, several thousand Indians were terminated by their own relatives—upwards of 9,000 tribal members have now been disenrolled from 79 tribes in 20 states according to Professor David Wilkins.

With the Omaha Tribe’s recent decisions to adjust hundreds of members’ blood quantum downward and to purge its rolls, it is now 80 tribes who have left their own people for dead, according to Wilkins.

Prof. Wilkins fears the BIA’s CDIB proposal is another tribal “depopulation campaign” in the making. Given the Trump Administration’s body of work—including Mashpee and Bears Ears—and rhetoric—suggesting that tribes are racial groups whose lands should be privatized—it is hard to disagree.

Likewise, I have no doubt that if the BIA carries out its proposed plan to cease issuing CDIBs, many more Indians will be disenrolled and internecine warfare will destroy many more tribal communities.

To be clear, both blood quantum and disenrollment need to be abolished. But with the genesis of each of those genocidal ways dating back to at least the Dawes Act of 1887, the abolition of blood quantum cannot be sudden, and it cannot happen at this tumultuous moment in American Indian history.

Please do your part to oppose the BIA’s plan. Quite enough Indian blood has already been spilled.

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.

We're Hiring: Need Another All-Star Associate

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Galanda Broadman, PLLC, an Indian Country Law Firm with eight lawyers and offices in Seattle and Yakima, Washington, and Bend, Oregon, seeks to add an experienced litigation associate to its growing tribal practice in Seattle.

Galanda Broadman is an American Indian owned firm dedicated to advancing tribal and tribal citizen legal rights, and Indian business interests. The firm represents tribal governments, businesses and citizens in critical litigation, business and regulatory matters, especially in the areas of Indian Treaty rights, tribal sovereignty, land rights, cultural property protection, taxation, commerce, gaming, serious/catastrophic personal injury, wrongful death, disenrollment defense, and indigenous human/civil rights.

The firm seeks an associate who is deeply committed to representing Indian interests, who is state bar licensed, preferably in Washington State, and who has at least two to five years of experience in civil litigation or serving as a judicial clerk.

Proven motion and civil rules practice, if not trial experience, and the ability to self-direct are critical. Impeccable writing and research skills; critical and audacious thinking; strong oral advocacy; tremendous work ethic; tenacity; and sound ethics are required.

Salary DOE.

Qualified applicants should submit a cover letter tailored to this announcement, as well as a résumé, writing sample, transcript, and list of at least three educational and professional references, to Alice Hall, the firm’s Office Manager, at alice@galandabroadman.com.

Applications directed elsewhere will not be considered.

Gabe Galanda Named Among America's Best Lawyers for 13th Straight Year

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Gabe Galanda has been selected by his peers for inclusion in the 2019 edition of The Best Lawyers in America® in the areas of Gaming Law and Native American Law, for the 13th straight year.  He has now been selected to The Best Lawyers in America® every year since 2007.

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

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

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

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

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.

Missing the Big Picture: Tribal LLCs and the Moneylending Double Standard

 The Lac Vieux Desert Band of Lake Superior Chippewa Indians was featured in An Unlikely Solution, a film about the online lending industry in Indian Country. Still image from  An Unlikely Solution  as posted on Indianz.com.

The Lac Vieux Desert Band of Lake Superior Chippewa Indians was featured in An Unlikely Solution, a film about the online lending industry in Indian Country. Still image from An Unlikely Solution as posted on Indianz.com.

By Anthony Broadman

The Eastern District of Virginia’s decision in Williams v. Big Picture this week is another reminder that Tribal LLCs will be held to a different standard in the lending context. 

Despite a legitimate business entity regulatory framework, the court set aside the Lac Vieux Desert LLC’s sovereign immunity.  Courts are almost uniformly rejecting sovereign immunity for Tribal LLCs in the lending context.  Further, the judicial skepticism found in lending cases is going to bleed into treatment of all Tribal LLCs. 

Doctrinally and technically, Big Picture and the Lac Vieux Desert Band of Lake Superior Chippewa Indians may have done everything right.  The court recognized legitimate governmental authority to form businesses, regulate those businesses, and return significant, important revenue to the Tribe.  But, reflecting the perceived stink of moneylending, the court rejected the LLC as an arm of the Tribe under the Breakthrough standard. 

Like many multi-part tests applied to Indian economic development, the Breakthrough 6-part test gives courts cover to do whatever they want.  And what the Big Picture court wanted was to ignore sovereign immunity and un-shield a scheme under which non-Tribal stakeholders enjoyed a much stronger position within this particular moneylending operation. 

It’s hard to say whether courts have been so hard on Tribal LLCs in the lending context because courts don’t like moneylending, or because moneylending tribal LLCs have done a poor job of shaping themselves in line with Breakthrough and its progeny. 

Still, the “big picture” should now be clear.  Entities participating in this industry must exceed the standards that we know courts will apply.  And because moneylenders have made the law courts will apply to all Tribal LLCs, non-moneylending LLCs must, too. 

Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.

Bree Black Horse To Address Microsoft Women's Group: "See Something. Say Something. Do Something."

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On Monday night, June 11, Bree Black Horse will speak to Janes of Digital, a platform started by Microsoft for women who work in digital marketing. 

The topic for that night is "See Something. Say Something. Do Something."  Bree intends to discuss the historic invisibility of Native women, and her Indian civil rights work, including on behalf of Carmen Tageant, a Nooksack mother who has been sexually harassed and accosted via Facebook. 

As Carmen's lawyer, Bree has called for broader tribal "opposition to the harassment and violence perpetrated against her and countless other Native women across the Country." 

Carmen, Bree, and others who #StandWithCarmen have sought "to empower other women to boldly tell their stories as Carmen has and call for an end to the marginalization and abuse of Native women— including at the hands of Native men and tribal officials who know that complaints, if any, will almost certainly fall through legal and jurisdictional cracks." 

In recent weeks, Bree has successfully subpoenaed internet protocol information from Facebook, Verizon, and Comcast---over First Amendment and privacy concerns, ironically---to initially expose Carmen's cyber harassers at Nooksack.  But, as she will share with Janes of Digital, Bree believes the legal process is far too difficult for a woman to protect herself from cyber harassment and violence.

Bree was recently featured in a Seattle Times Pacific NW Magazine story (here) regarding "the different ways women from minority and marginalized populations connect with the #MeToo movement’s outpouring of stories about sexual harassment and violence."

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.

 

Gabe Galanda Named Western Washington University Distinguished Alumnus

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On May 18, 2018, Western Washington University will honor Gabriel “Gabe” Galanda as a Distinguished Alumnus.

Gabe is being recognized for his staunch advocacy for Indian civil rights protection, especially in the context of tribal disenrollment.  He maintains that traditional indigenous kinship norms should over-ride colonial rules for tribal belonging, most notably blood quantum.

Last October, Gabe delivered a campus-wide lecture at Western titled, “Restoring Indigenous Kinship Amidst America’s Nationalist Movement.” He believes that indigenous kinship norms—rooted in family and place—provide a path towards resolution of America’s current identity crisis.

Last week Gabe delivered a speech at the Harvard Kennedy School of Government, “Re-imagining Tribal Citizenship,” in which he urged indigenous peoples in America to restore traditional kinship rules and norms for purposes of self-rule, including determinations regarding who belongs to tribal communities.

As Indian Country Today Media Network observed when naming Gabe as one of “50 Faces of Indian Country” in 2016, he has emerged nationally “as one of the most outspoken critics of the practice” of disenrollment, the “roots of [which] lie in colonialism, not indigeneity.”

In 2015, Gabe co-authored a 92-page law review article, “Curing the Disenrollment Epidemic: In Search of a Remedy.”  His article was recently named one of the Top 100 pieces of indigenous legal rights scholarship.

Gabe has defended nearly 600 Indians against disenrollment, including having kept the Nooksack 306 where they belong since 2013; obtained a “watershed decision” for 66 Grand Ronde Chief Tumulth Descendants; and protected 132 Elem Pomo Indians from being exiled, which would empty their Reservation.

Gabe was born and raised in Port Angeles, Washington.  In 1995, he received his A.A. from Peninsula College, where he served as Associate Student Body President.  He received his B.A. in English Literature from Western in 1997, and his J.D. from the James E. Rogers College of Law at the University of Arizona in Tucson, in 2000.  At Arizona, he served as President of the Native American Law Students Association.

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.

"We were not 'governments' in 1492....We were kinship societies."

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This blog is based on a talk that Gabe Galanda gave at Harvard University's Kennedy School of Government, in conjunction with Harvard Project on American Indian Economic Development forum, "The Next Horizon," on May 1st. Gabe thanks Seattle City Councilwoman Debora Juarez, Dr. David Wilkins, and Professors Robert Williams, Matthew Fletcher, and Eric Eberhard for their teachings and research insights.
"The culture comes from the language." -- Darrell R. Kipp, Blackfeet

We were not “governments” in 1492. 

We were not “nations” in 1787. 

We were not “citizens” in 1823 or 1832.

We were kinship societies when Columbus arrived to Haiti, when the framers drafted the Constitution, and when Chief Justice John Marshall authored the Marshall Trilogy. 

We belonged to our societies as members, as in family members, not as citizens.

We were self-governing, but we were not governments.

“Native nations” and “tribal citizens” are racial formations, established by the colonizer under its processes—not ours.

Native nationhood was the mode by which Treaties and other laws could be forged to dispossess us of our lands—it was a mode of annihilation.

Native nationhood, to the extent exclusive of traditional kinship norms, remains a mode by which indigenous peoples will be extinguished.

If we continue to determine who belongs through use of racial formations, rather than through kinship rules, we will eventually be terminated.  Just look at the Trump Administration’s most recent treatment of tribes as a racial group for federal Medicaid reimbursement purposes.

Unless we return to the ways of kinship, we will eventually cease to exist.

Who were we?

Vine Deloria, Jr.’s auntie, Ella Deloria, said it best, writing from New York City in 1944:

All peoples who live communally must first find some way to get along together harmoniously and with a measure of decency and order.  This is a universal problem.  Each people, even the most primitive have solve it in its own way.  And that way, by whatever rules and controls it is achieved, is, for any people, the scheme of life that worked, The Dakota people of the past found a way: it was through kinship.

Kinship was the all-important matter.  Its demands and dictates for all phases of social life were relentless and exact . . . . By kinship all Dakota people were held together in a great relationship that was theoretically all-inclusive and co-extensive with the Dakota domain.  Everyone who was born a Dakota belonged in it; nobody need be left outside. . .

[T]he ultimate aim of Dakota life, stripped of accessories, was quite simple: One must obey kinship rules; one must be a good relative. . . . In the last analysis every other consideration was secondary—property, personal ambition, glory, good times, life itself. . .

[T]hose who kept the rules consistently and gladly, this honoring all their fellows, were good Dakotas—meaning good citizens of society, meaning persons of integrity and reliability.  And that was practically all the government there was.

“Speaking of Indians,” "Part II, 'A Scheme of Law That Worked,'" at pp. 25-32.

Illustrating the still pervasive universal nature of kinship and belonging at birth, as Ms. Deloria described, are Articles 9 and 22 of of the United Nations Declaration on the Rights of Indigenous Peoples, which provide respectively:

Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community.

Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.

Rather ironically, under the colonizer’s words governing its own citizens' belonging, citizenship is guaranteed, quite simply, to all who are born unto the land known today as the United States.  That bedrock American rule is established by the Constitution’s Fourteenth Amendment and affirmed by 5 U.S.C. 1402, titled “Nationals and citizens of United States at birth.”

Pre-conquest we, too, were inclusive peoples, who identified and governed according to very simple but exacting kinship rules.  But those ancient rules began to vanquish in the 19th Century.

How did we become "nations"?

In 1823, in Johnson v. McIntosh, U.S. Supreme Court Chief Justice John Marshall, immediately before declaring us “fierce savages,” observed: “When conquest is complete . . . the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct peoples.”

By 1831, he “denominated” us “domestic dependent nations,” in Cherokee Nation v. Georgia.  Whether as "savages" or "dependent nations," these are racial formations from which modern Native nationhood has evolved. 

Exclaiming the United States' racial subjugation of indigenous peoples, the following year in Worcester v. Georgia, Justice Marshall explained:

The words ‘treaty’ and ‘nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning.  We have applied them to Indians . . .

The “our” and “we” is the colonizer.  Words like “nation” were the colonizer’s—not ours.

Lest you have any doubt about that term, as applied to the then so-called Cherokee Nation in Worcester, consider Professor Rennard Strickland’s words in “Fire and Spirits”:

Englishmen were looking for Native versions of British courts and . . . concluded, in a supreme gesture of ethnocentrism, that the Cherokees had no system of law.

In truth, the Cherokee conception of law was simply different from the more traditional Western idea of law.  To the Cherokees law was the early representation of a divine spirit order. . .

The ongoing social process could not, in the Cherokee way, be manipulated by law to achieve policy goals.  There was no question of man being able to create law because to the Cherokee the norms of behavior were a sovereign command from the Spirit World.  Man might apply to the divinely ordained rules, but no earthly authority, was empowered to formulate rules of tribal conduct.

Indeed, treaties and positive law, including those establishing tribal “nationhood” and “government” in the 1800s, were then the colonizer’s words and ways—not ours.

As to Cherokee kinship and belonging, Professor Strickland offers these words:

Society is divided into separate classes and ranks which were created by the Spirits.  There is no significant stigma attached to class membership.  All classes, both men and women, are of great value socially and have important and useful roles in Cherokee society. . . .

Legal norms existed on four levels among ancient Cherokees. . . .

The first of the norms were those governing relationships between man and the supernatural—the Spirit Beings.  Second were the norms prescribing conduct of the individual Indian towards specific public order, issues relating to the entire village or tribe.  Next were the norms concerning clan rights and duties.  Finally, there were a limited number of norms on individual or personal questions.

In other words, kinship rules and norms pervaded, until the Marshall Trilogy took hold.

How did we cease self-rule by kinship?

Aided by the Marshall Trilogy's discovery doctrine and native nationhood model, Treaties and the General Allotment (Dawes) Act of 1887 were promulgated.  Each of those federal laws were intended to, and operated to, pulverize our kinship ties to multi-millions of acres of homelands. 

The Dawes Rolls, created by the U.S. in only six months and thus demonstrably incomplete and incorrect, were especially destructive to kinship.  Kinship societies-turned-tribes have since used those federal rolls as their so-called base rolls—as the foundation of who belongs, or doesn’t.

Then in 1934, the U.S. Congress passed the Indian Reorganization Act (IRA), deciding for tribes, who belongs to tribes, declaring Indians to be “members” if ½ degree or more of "blood quantum" and if in residence on reservations. 

Blood quantum is a racial fiction; one's human blood doesn't segregate mathematically.

Residence, although once a predominate form of kinship, took on a new meaning after arbitrary lines were drawn by the colonizer to concentrate Indian homelands onto reservations, in order to allow Manifest Destiny to flourish from coast to coast.

Now, 85 years later, the colonizer’s membership rules—and norms—indeed racism and classism—have supplanted kinship rules.  That is why we refer to ourselves as a race of “full bloods,” “half bloods,” and “mixed bloods”; and classes of “res Indians,” “off-res Indians,” and “urban Indians.”

Under the IRA, family members became political members of tribal constitutional governments and corporate entities, particularly under boilerplate constitutions and corporate charters foisted upon tribes by John Collier and his followers, including a nascent National Congress of American Indians.  Under those new tribal laws, tribal relatives can be “disenrolled” from the tribe. 

I have yet to discover an indigenous word that translates even close the word “disenrollment,” exclaiming the wholly foreign nature of that concept to us as indigenous peoples.

How did money over-rule kinship?

Dating back to the federal Lacey Act of 1906 and continuing through the Indian Gaming Regulatory Act (IGRA) of 1988, belonging has been increasingly individualized and monetized, through “pro rata” or “per capita” distributions of tribal communal wealth, by tribes to tribal members. That federally designed regime is also intended to pulverize us into oblivion. 

In fact, fueled by that new individual wealth, and corresponding graft and greed, 15% of today’s federally recognized tribes have disenrolled their kin.  In the case of the Elem Colony of Pomo Indians, tribal politicians are attempting to disenroll 100% of the tribe’s on-Colony population.  They are purportedly legislating themselves into oblivion. It is self-termination.

Addled by per capita greed, tribes are also imposing enrollment moratoria, meaning no longer enrolling or including their children among those who belong. 

Think about that for a minute. 

We talk, almost tritely, of the sustaining as indigenous peoples for sake of the Seven Generations.  Yet an increasing number of tribes are severing inter-generational kinship ties.  They are disowning their Fourth, Fifth, Sixth, and Seventh Generations.

In today's final analysis, kinship is secondary—to money. Venal exclusion has supplanted traditional inclusion.

Where do we go from here?

We cannot throw out the Native nationhood model.  Or abrogate Treaties, or IRA Constitutions or Bylaws.  Or abandon tribal capitalism via economic development. 

Tribes would be terminated without the modern nation-to-nation relationship; without Treaties as the Supreme Law of the Land per the U.S. Constitution; or without economic resources and the political power that accompanies those dollars.

Kinship, however, must be infused into Native nationhood, and throughout Native nation institutions as we know them today. 

In particular, we must use traditional kinship norms to define ourselves and our belonging.  That can mean maintaining the rubric and language of citizenship and IRA membership, if necessary.  

But we cannot self-define who belongs according to the Dawes Rolls or other federal censuses, or blood quantum, or colonial residential criteria, or gaming per capita checks.

We cannot allow racism, classism, individualism, nor capitalism to self-define us any longer.

We must re-define ourselves according to kinship rules.  We must re-define ourselves according to birthright.  We must re-define ourselves according to spiritual and cultural indigenous norms. 

If we do not, our nascent Native nations will rot from our core, until we eventually fall.

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.

 

 

9th Circuit Says Jurors Needn’t Read Jailers’ Minds to Find Liability

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By Ryan Dreveskracht

On Monday, the Ninth Circuit Court of Appeals made clear that jurors do not need to be mind-readers when it comes to determining whether adequate medical care was provided to pretrial detainees. In clarifying that these Fourteenth Amendment claims must be evaluated under an objective standard—as opposed to the Eighth Amendment’s subjective standard—the Court significantly eased the burden on § 1983 plaintiffs.

In Farmer v. Brennan, the U.S. Supreme Court held that under the Eighth Amendment's "cruel and unusual punishments" clause jail employees must "take reasonable measures to guarantee" an inmate's safety, which includes providing "adequate . . . medical care."  511 U.S. 825, 832 (1994).  The Court then articulated a two-prong inquiry for determining whether this standard is violated. 

First, the jury must consider whether a person is detained “under conditions posing a substantial risk of serious harm."  Id. at 834.  Second, the jailers who put the inmate in those conditions must both "know[] of" and purposefully disregard those conditions.    Id. at 837.  In other words, the jury must go into jailers' heads and determine (1) whether they actually believed the inmate was put at an increased risk of harm or death, and (2) whether the jailer made the conscious decision to keep the inmate in harm’s way despite that risk.  As the Court observed, under this test a jailer could escape liability under the second prong if he or she “knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.”  Id. at 844.  Or, alternatively, a jailer so aware would not be liable if he or she “responded reasonably to the risk, even if the harm ultimately was not averted.” Id.

Four years later, in Frost v. Agnos, the Ninth Circuit Court of Appeals held that "[b]ecause pretrial detainees' rights under the Fourteenth Amendment are comparable to prisoners' rights under the Eighth Amendment . . . we apply the same standards."  152 F.3d 1124, 1128 (9th Cir. 1998).  Other Courts of Appeal held likewise, refusing to "distinguish between Eighth and Fourteenth Amendment standards."  Funchess v. John Doe #1, No. 96-4767, 1997 WL 12785, at *2 (N.D. Ill. Jan. 10, 1997).  In other words, the law did not distinguish between convicted felons serving their sentence and pretrial detainees not convicted of anything—Farmer's subjective test applied to everyone.

Then, in 2015, the Supreme Court decided Kingsley v. Hendrickson, holding, in relevant part:

In deciding whether the force deliberately used [by the officer on the pretrial detainee] is, constitutionally speaking, “excessive,” should courts use an objective standard only, or instead a subjective standard that takes into account a defendant's state of mind?  It is with respect to this question that we hold that courts must use an objective standard.  In short, . . . a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.

135 S.Ct. 2466, 2472-73 (2015).  Since "a subjective standard will be more demanding, requiring the plaintiff to allege specific facts that shed light on the defendant's mental state, rather than more general notions of what should have been objectively clear," Kingsley's application of the objective test to Fourteenth Amendment excessive force cases was a huge step forward for civil rights plaintiffs.  Kedra v. Schroeter, 876 F.3d 424, 454 (3d Cir. 2017).

Shortly after Kingsley, in Castro v. County of Los Angeles, the Ninth Circuit held that Kingsley's Fourteenth Amendment objective test applied to "failure to protect" cases, as well as those where officers use excessive force.  833 F.3d 1060, 1070 (9th Cir. 2016).  As the Castro court explained:

Excessive force applied directly by an individual jailer and force applied by a fellow inmate can cause the same injuries, both physical and constitutional. Jailers have a duty to protect pretrial detainees from violence at the hands of other inmates, just as they have a duty to use only appropriate force themselves. . . . [T]here are significant reasons to hold that the objective standard applies to failure-to-protect claims as well.

What followed was an erratic series of rulings by district courts “on whether to extend the objective reasonableness standard of review set forth in Kingsley to cases of pretrial detainees that do not involve the use of excessive force (i.e., cases challenging medical treatment . . . ).”  Castillo v. Dubose, No. 14-0987, 2017 WL 3765772, at *6 (M.D. Ala. Jul. 31, 2017) (quotation omitted).  In the Ninth Circuit, district courts that addressed Kingsley's objective standard applied it with hesitancy, holding, for example, that "factual allegations are sufficient under either standard."  Williams v. Cty., No. 15-1760, 2016 WL 4745179, at *6 (D. Or. Sept. 12, 2016); see also Bremer v. Cty. of Contra Costa, No. 15-1895, 2016 WL 6822011, at *6 (N.D. Cal. Nov. 18, 2016) ("The Court need not decide whether the subjective or objective standard applies here as no reasonable jury could find the Individual Defendants were deliberately indifferent under either standard.").  Defendants, of course, continued to argue that a subjective standard should be applied in all but excessive force and failure-to-protect cases, while inmates and the families of deceased inmates argued that the less-demanding objective standard applied.

Then, on Monday, the Ninth Circuit Court of Appeals issued an order that provided clarity once and for all.  In Gordon v. Cty. of Orange the court expressly held that that "claims for violations of the right to adequate medical care brought by pretrial detainees against individual defendants under the Fourteenth Amendment must be evaluated under an objective deliberate indifference standard."  No. 16-56005, 2018 WL 1998296, at *5 (9th Cir. Apr. 30, 2018). 

Gordon leaves jurors no longer needing to read jailers’ minds in order to find them liable for failure to render medical care to inmates.

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle.  His practice includes civil rights litigation against jails and prisons for their unlawful treatment of inmates.  He can be reached at (206) 909-3842 or ryan@galandabroadman.com.

Gabe Galanda to Talk Tribal Kinship At Harvard University

 From Ella Deloria's Speaking of Indians (1944)

From Ella Deloria's Speaking of Indians (1944)

Next week, Gabe Galanda will deliver an Insight Blast titled, "Re-Imagining Tribal Citizenship," at Harvard University. 

Gabe will discuss the acute need for indigenous peoples to infuse historic tribal kinship values into modern modes and institutions of self-governance, particularly in regard to belonging.

Gabe's talk will occur at the John F. Kennedy School of Government on May 1, in conjunction with a Harvard Project on American Indian Economic Development forum: "The Next Horizon." 

The invite-only forum "will bring together the leaders, the innovators, the thinkers, and the decision makers who are fighting to make Indigenous sovereignty and self-determination realities. The peer-to-peer events of the gathering will help chart the path forward."

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.