Dr. King Prepared Us: We Must All Act Now To Stop Injustice

By Joe Sexton

The core message of Dr. King’s “Letter From a Birmingham Jail” means more in 2026 than it has since the 1960s. Thankfully, he prepared us for this moment, and for America’s confrontation of overbroad and unjust immigration enforcement. 

Just as institutions failed initially to meet the moment of the Civil Rights struggle, our institutions now present little in the way of comfort. Even the Supreme Court of the United States has fallen short. In a shadow-docket decision handed down a few months ago, the Court sanctioned these injustices, allowing for racial profiling in immigration detentions.  The Court did so without briefing or argument, and without a majority opinion that addresses past precedent, statutes, regulations, and our Constitution. 

Even worse, Justice Kavanaugh penned a concurrence that hollows out the 4th Amendment’s protections when it comes to federal immigration enforcement actions against people who do not appear white. 

King wrote his 1963 letter while he was jailed for violating a state court order that barred demonstrations in Birmingham, Alabama.  His letter was a response to a message signed by eight white clergymen, all of whom were from Alabama.  In their missive, these clergymen pled with the Black community to stop demonstrating and protesting in Alabama, appealing to “the principles of law and order.”  They argued that when “rights are consistently denied” those aggrieved should work “in the courts and in negotiations among local leaders, and not in the streets.”[1]  These fellow religious leaders complained of King and other “outsiders” stirring up “such actions as [to] incite hatred and violence,” lecturing those civil rights leaders that “however technically peaceful their actions may be” they do not resolve “our local problems.”

Injustice Is Never Merely Local.

King’s response was unequivocal:

I am in Birmingham because injustice is here . . . I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. . . Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.[2]

The Roberts Court today is reaffirming the truth of King’s message, and showing us how fragile the progress is that we as a nation made through the leadership of King and the civil rights movement, showing us the way through their peaceful resistance.  The clergymen who wrote King did not seem to be writing in bad faith.  They were very likely good people who wanted institutional racism to end on the one hand, and peace and tranquility to persist on the other, at the same time.  They believed in our justice system and the rule of law. 

But King understood that in the absence of resistance our system will not work on its own to root out injustice.  It will not stop a state whose leaders are committed to injustice as a means to whatever may be the ultimate end.  “We know through painful experience,” King answered the clergymen, “that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed."[3]

The Supreme Court Has Fundamentally Altered 4th Amendment Law To Allow Racial Profiling As A Basis For Extended Detentions Of Lawful Citizens.

For half a century before this year’s decision in Noem v. Vasquez Perdomo this past September, the Supreme Court had been skeptical of law enforcement’s reliance on ethnicity, race, or related factors as grounds for reasonable suspicion to justify arrests, often times throwing out criminal cases where the predicate for the seizure included alleged reasonable suspicion tied to someone’s ethnicity, or some other category that may describe a large category of otherwise innocent people, like speaking Spanish or having brown skin.[4] 

But Justice Kavanaugh's concurrence in Vasquez Perdomo provided a new framework—the "Kavanaugh Rule”—for immigration stops that accepts "apparent ethnicity," Spanish or accented English, presence at certain locations (like day‑labor corners or car washes), and low‑wage work as "relevant factors" that together can justify an interior immigration stop and seizure.[5] 

In effect, the Kavanaugh Rule blesses a suspicion template that sanctions sweeping immigration dragnets in non-white communities, targeting people of color directly because they are not white.[6]  Kavanaugh reassures us that these are only "brief investigative stops" and that "individuals who are U.S. citizens or otherwise lawfully present will be promptly released once their status is ascertained," portraying the intrusion as minimal and easily corrected.[7] 

Kavanaugh, however, ignores the reality of what was happening on the ground at the time he penned his concurrence,[8] and he disregards the potential for abuses depending on how the Trump government would leverage the Kavanaugh Rule.[9] 

Justice Sotomayor’s dissent warned that under the new Kavanaugh Rule, reasonable suspicion justifying arrest may be based on factors that describe millions of United States citizens and lawful residents whose only 'suspicion' is that they live and work while looking or sounding ‘foreign.’[10] The factors which may now form reasonable suspicion to detain someone “describe a very large category of presumably innocent” people and in practice sweep in “anyone who looks Latino, speaks Spanish, and appears to work a low‑wage job."[11]

The dissent forecasted that the Kavanaugh Rule effectively creating "a second‑class citizenship status."[12] The dissent was immediately proven right.  And we find ourselves once again in a place where innocent brown people—including Indigenous people, astonishingly—may find themselves in jail for extended periods merely because of the color of their skin, the language they speak, or the work they do. 

Under the Kavanaugh Rule, DHS is now at liberty to mark entire classes of non‑white people as presumptively suspect, and licenses militarized federal forces to violate those people’s human and constitutional rights, but only for “brief” periods in Kavanaugh’s view.  What we’ve seen emerge in the wake of Vasquez Perdomo and the Kavanaugh Rule shows race and ethnicity-based detentions that go beyond any reasonable definition of “brief.”  

A December 2025 report of the Senate Permanent Subcommittee on Investigations documented 24 U.S. citizens whom ICE or CBP illegally detained or deported.[13] Of 22 citizens interviewed for the report, the government held seven for more than 24 hours, and several were held between 48 and 96 hours.[14] Examples include:

·      George Retes, a disabled U.S. Army veteran, pulled from his car and detained for more than three days despite his citizenship.

·      Javier Ramirez, a diabetic U.S. citizen father, beaten, shackled, and jailed for over 96 hours despite having proof of citizenship on his person.

·      Andrea Velez, a citizen held over 48 hours despite repeatedly asserting citizenship and having identification in her bag.

·      Chanthila Souvannarath, with a long‑standing citizenship claim, deported to Laos in 2025 in direct defiance of a federal court order—ICE simply ignored the judiciary.[15]

Even producing proof of citizenship, or offering to, does not reliably end these encounters.[16] In the real world, people of color confronted by armed agents cannot rely on the promise of a 'quick clarification' when officers already view them as presumptively deportable:

·      Javier Ramirez told agents he had valid U.S. ID and a passport in his pocket; an agent allegedly said "just get him, he's Mexican," and he was still detained four days.[17]

·      Leonardo Garcia Venegas, a U.S. citizen, was twice detained even after presenting an Alabama STAR ID—a document by law issued only to citizens—which agents dismissed as "fake."[18]

·      In Minneapolis, Mubashir Khalif Hussen, a U.S. citizen, was put in a headlock by plain‑clothes ICE agents while walking to lunch; he told them he was a citizen and offered to show his passport but was held for hours before anyone checked it.[19]

·      At a Minneapolis Target in January 2026, video shows two employees violently tackled and handcuffed inside the store by federal officers; state officials later confirmed both were U.S. citizens; at least one of these victims insisted he was a citizen as he was dragged away.[20]

These are not brief investigative stops. They are prolonged, sometimes violent warrantless seizures.  This is precisely the kind of abuse the Fourth Amendment was intended to protect against.

DHS Is Targeting First Americans.

And now because being a person of color may be used as a predicate for warrantless arrests and detentions, DHS is targeting Indigenous people.  The Native American Rights Fund (NARF) describes ICE abducting Tribal members—"the first peoples of this land”—based solely on racial profiling.[21]  We increasingly hear of ICE showing up at Tribal casinos and enterprises to question and detain Indigenous workers whose citizenship is not in doubt, but whose appearance fits the immigration "profile" the Supreme Court has licensed ICE to target.[22] Knowing that ICE lacks jurisdiction over citizens is little comfort to first peoples who are detained and justifiably afraid. 

This administration would no doubt dismiss any violence against a detainee as warranted. So resisting appears to carry more risk than it ever has.  Possession of a claim against the United States for violating one’s rights is little comfort to the dead. King insisted that "an unjust law is a code that a numerical or power majority compels a minority group to obey but does not make binding on itself," and this is exactly what the Kavanaugh Rule represents: a Fourth Amendment that functions fully for whites and the powerful, but only conditionally, if at all, for communities of color.[23]  The problem, as King noted, is that “injustice anywhere is a threat to justice everywhere.”[24]

We Must All Work For Change To End This Regression.

King warned that the greatest stumbling block might not be the open racist, but the "white moderate who is more devoted to 'order' than to justice."[25] A Supreme Court that privileges federal "immigration sweeps" and "order" over the explicit, documented violations of the Fourth Amendment against non‑white citizens is reenacting that very dynamic from the bench.

This is regression, aiming our trajectory backwards to the dark days of genocide and segregation. Allowing armed federal agents to detain people inside our borders because they are brown, Indigenous, Somali, or otherwise marked as "foreign," and then excusing extended detentions of citizens as necessary to preserve law and order moves the United States back toward an era when full rights were reserved for whites and men, and everyone else's liberty was subject to conditions and exceptions.

By normalizing racialized dragnets and hollowing out Fourth Amendment protections for entire classes of people, we are undermining King’s work. The movement King catalyzed in the 20th century aimed to dismantle this oppression through non-violent resistance. To stop this regression, I believe we all need to resist, even those of us privileged enough to be safe from the terror we are watching visited upon our non-white neighbors.  We must take King’s final public words to heart and turn them into action; words he gave us in a speech the night before he was gunned down in Memphis:

If I lived in China or even Russia, or any totalitarian country, maybe I could understand some of these illegal injunctions. Maybe I could understand the denial of certain basic First Amendment privileges, because they hadn't committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of press. Somewhere I read that the greatness of America is the right to protest for right. And so just as I say, we aren't going to let dogs or water hoses turn us around, we aren't going to let any injunction turn us around. We are going on.

We need all of you.[26]

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 is a Unites States Marine Corps veteran. He can be reached at (509) 910-8842 and joe@galandbroadman.com. 

[1] Letter from clergymen to King, found here.

[2] Martin Luther King Jr.’s “Letter From A Birmingham Jail.”

[3] Id.

[4] See e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 885–87 (1975) (“Mexican appearance” alone cannot justify stopping a car; “large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry.”);  see also Reid v. Georgia, 448 U.S. 438, 441 (1980) (per curiam) (Court declines to find reasonable suspicion based on “circumstances [that] describe a very large category of presumably innocent travelers who would be subject to virtually random seizures . . .”).

[5] Noem v. Vasquez Perdomo, 606 U.S. ___ (2025)(Kavanaugh, J., concurring). https://www.supremecourt.gov/opinions/24pdf/25a169_5h25.pdf (Kavanaugh, J., concurring); see also "Justice Brett Kavanaugh and Racial Proxies," SCOTUSblog, September 24, 2025, https://www.scotusblog.com/2025/09/justice-brett-kavanaugh-and-racial-proxies/.

[6] The Supreme Court Decision on ICE and Racial Profiling, Explained," The New York Times, September 8, 2025, https://www.nytimes.com/2025/09/08/us/politics/supreme-court-immigration-racial-profiling.html; Native American Rights Fund, "NARF Statement on Unlawful ICE Activity," January 15, 2026, https://narf.org/narf-statement-ice/; "Minnesota Legislators Confirm Minneapolis Police Conduct ICE Sweeps," NPR, November 5, 2025, https://www.npr.org/2025/11/05/nx-s1-5598373/npr-fact-checks-kristi-noem-on-ice-detaining-us-citizens.

[7] Id.

[8] “The concurrence relegates the interests of U. S. citizens and individuals with legal status to a single sentence, positing that the Government will free these individuals as soon as they show they are legally in the United States . . . That blinks reality. Two plaintiffs in this very case tried to explain that they are U. S. citizens; one was then pushed against a fence with his arms twisted behind his back, and the other was taken away from his job to a warehouse for further questioning.” Noem v. Vasquez Perdomo, 606 U.S. ___, ___ (2025) (Sotomayor, J., dissenting). In the post-Kavanaugh-Rule America, even those brief detentions are mild by comparison to what is happening to many brown people who are being ripped from their vehicles and workplaces, violently restrained and thrown into the backs of unmarked SUVs, and driven to detention centers where they are likely searched, have their valuables seized, and thrown into a cell without any ability to contact family or legal counsel, and if they’re fortunate, released hours later without charges because ultimately they did nothing wrong.  They were merely non-white and existing in America. 

[9] "Target Employees Detained by Federal Officers Were U.S. Citizens," KCCI-8, YouTube, January 12, 2026, https://www.youtube.com/watch?v=mE9NmlNeiIQ; Native American Rights Fund, "NARF Statement on Unlawful ICE Activity," January 15, 2026, https://narf.org/narf-statement-ice/; Pear, Robert, "ICE Barbie Warns Americans Must Be Prepared to Prove Citizenship," The Daily Beast, January 15, 2026, https://www.thedailybeast.com/ice-barbie-warns-americans-must-be-prepared-to-prove-citizenship/.

[10] See Vasquez Perdomo, 606 U.S. ___, ___ (2025) (Sotomayor, J., dissenting).

[11] Id.

[12] Id.

[13] Senate Permanent Subcommittee on Investigations, "Unchecked Authority: How ICE and CBP Illegally Detained and Deported U.S. Citizens," December 8, 2025, https://www.hsgac.senate.gov/wp-content/uploads/2025.12.8_ICE-Report-revised-FINAL.pdf.

[14] Id.

[15] National Immigrant Project of the National Lawyers Guild, "ICE Deports Man Claiming U.S. Citizenship to Laos Despite Federal Court Order," October 28, 2025, https://nipnlg.org/news/press-releases/ice-deports-man-claiming-us-citizenship-laos-despite-federal-court-order.

[16] Senate Permanent Subcommittee on Investigations, "Unchecked Authority," supra note 13.

[17] Senate Permanent Subcommittee on Investigations, "Unchecked Authority," supra note 13.

[18] Id.

[19] ICE Agents Wrongfully Detained US Citizen, Minneapolis Mayor Says," CBS Minnesota, December 10, 2025, https://www.cbsnews.com/minnesota/news/minneapolis-leaders-say-us-citizen-was-wrongfully-arrested-by-ice-agents/ ; ACLU, "ACLU Sues Federal Government to End ICE, CBP's Practice of Suspicionless Stops, Warrantless Arrests," January 14, 2026, https://www.aclu.org/press-releases/aclu-sues-federal-government-to-end-ice-cbps-practice-of-suspicionless-stops-warrantless-arr.

[20] "Target Employees Detained by Federal Officers Were U.S. Citizens," KCCI-8, YouTube, January 12, 2026, https://www.youtube.com/watch?v=mE9NmlNeiIQ.

[21] Native American Rights Fund, "NARF Statement on Unlawful ICE Activity," supra note 6.

[22]Native Nations Mobilize Against ICE Targeting and Profiling, UNDERSCORE NEWS (Feb. 10, 2025), https://www.underscore.news/justice/federal-policy/native-nations-mobilize-against-ice-targeting-and-profiling/.; see also Native Americans Are Being Swept Up by ICE in Minneapolis, Tribes Say, WASH. POST (Jan. 15, 2026), https://www.washingtonpost.com/politics/2026/01/15/native-americans-ice-minneapolis/.

[23] King, "Letter from a Birmingham Jail," supra note 1

[24] Id.

[25] Id.

[26] Martin Luther King, Jr., I’ve Been to the Mountaintop (Apr. 3, 1968), in AM. RHETORIC, https://www.americanrhetoric.com/speeches/mlkivebeentothemountaintop.htm

May Your Holidays Be Filled With Love and Light

Joe Sexton, Ethan Jones Admitted to State Bar of Arizona

Indigenous rights lawyers Joe Sexton and Ethan Jones have secured admission to the State Bar of Arizona.

With five University of Arizona Law School and Indigenous Peoples Law and Policy Program alumni, Galanda Broadman's connections to Arizona Indian country run deep.

For more information about Joe's practice: https://www.galandabroadman.com/profiles/r-joseph-sexton

For more information about Ethan's: https://www.galandabroadman.com/ethan-jones

Gabe Galanda Discusses Incarcerated Indigenous People's Religious Freedoms on Hourglass Podcast

Gabe Galanda is is featured on the Hourglass podcast this week, discussing Huy's ongoing advocacy for the religious freedoms of incarcerated Indigenous people. Listen here.

This week’s episode is a conversation with Gabriel Galanda of Huy, a Seattle-based Indigenous organization that provides economic, rehabilitative, educational, and religious support for Indigenous inmates in Washington state and beyond. United Way of King County proudly supports Huy, which ensures that Indigenous people behind bars maintain the rights afforded to all people in our country and receive the cultural support and family connections while serving time.

Galanda Broadman Named "Best Firm" in Native American & Gaming Law for Fourteenth Year

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 fourteenth 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 is dedicated to advancing Tribal legal rights and business interests and defending Indigenous human rights.

The firm, with nine lawyers and offices in Seattle and Yakima, Washington and Bend, Oregon, represents Tribal governments, businesses, and citizens and Indigenous people in critical litigation and business and regulatory matters, including those involving Treaty rights, sovereignty, taxation, gaming, and civil rights.

Evaluating Tribal Claims Against Trump’s Anti-DEI and Immigrant-Enforcement Grant Conditions

By Joe Sexton and Rachel Tobias

As part of this second Trump administration’s aggressive efforts to weave right-wing cultural and partisan political issues into every facet of federal governance, agency heads have announced new funding terms and conditions that attach sweeping new obligations to grant awards (including those for which Congress appropriated funding prior to this administration) meant to fund local infrastructure, homelessness initiatives, housing subsidies, and public transit. Tribal nations are not exempt from the impacts.

These new terms and conditions range from requiring grant recipients to certify they have purged their institutions of any diversity, equity, and inclusion (DEI) policies (without respect to whether or not such policies actually violate federal antidiscrimination laws), to mandating cooperation with immigration‑enforcement authorities[1], and affirming compliance with a selection of President Trump’s slate of politically motivated executive orders, which are unrelated to the underlying grant purposes.

The new conditions raise major risks for grantees, including Tribal nations, because agreeing contractually to such new and far-reaching terms and conditions may require radically altering governmental policies, harm minority groups those governments serve, and subject Tribal government officials to criminal liability if the administration decides they have not adequately complied with the terms.[2]  

In King County v. Turner, a federal court has held that these new terms and conditions likely exceeded statutory authority and are arbitrary and capricious under the  Administrative Procedure Act (APA), and has issued a preliminary injunction enjoining the federal government from making the grant funds contingent on the plaintiff grant recipients agreeing to the new terms and conditions.[3]

Because of the U.S. Supreme Court’s ruling in Trump v. CASA Inc., earlier this year, the injunction does not preclude the government from enforcing these terms and conditions on any local government that is not named as a Turner plaintiff.[4]

The list of federal agencies seeking to impose the new conditions on a vast array of grant recipients is growing. Tribal nations should understand that if a federal agency seeks to impose new conditions on a grant award or subaward—especially after the appropriation and without clear statutory authorization—there may be grounds to challenge such conditions in court like the plaintiffs in King County v. Turner.

The typical path is to bring an APA claim (or related constitutional claim) in federal court seeking a declaratory judgment and injunctive relief. 

Simply put, the administration’s attempt to impose its own requirements on these grant funds violates not only the APA, but the U.S. Constitution’s separation of powers doctrine.  Congress holds the power of the purse, not the Executive Branch.

Lawsuits similar to the Turner case are being filed around the country: a coalition of 17 domestic violence and homelessness‑service nonprofits recently secured a preliminary injunction in Rhode Island against grant conditions that would have required them to eliminate DEI initiatives.[5] And the Chicago Housing Authority is suing over new HUD‑imposed anti‑DEI conditions, arguing that only Congress may attach conditions to federal funds.[6]

For Tribal nations facing an effort by a federal agency to impose the new terms and conditions on an approved grant, you can consider seeking injunctive relief. The key first step is mapping whether your funding flows directly from the federal agency or through a subrecipient or pass‑through, and whether the new conditions are being applied to  grant programs you participate in.[7]

If the conditions are being applied or you determine they are likely to be, seeking injunctive relief is an option even if you have not received a notice regarding the new conditions from the applicable agency. Even if you’re not currently a plaintiff in ongoing nationwide suits, you may have independent standing to challenge your own award’s conditions and potentially join or coordinate with broader coalitions.

The important takeaway is that the legal landscape is active: agencies are facing successful challenges, and Tribal nations should assess their grants proactively rather than assuming there is no recourse.

Joe Sexton is a partner at Galanda Broadman, whose practice focuses on complex civil litigation defending Indigenous rights and litigating tribal environmental and cultural resources disputes in federal, tribal, state, and administrative forums.

Rachel Tobias is of counsel at Galanda Broadman, supporting the firm’s tribal law and Indigenous rights practice. Rachel holds a JD from the University of New Mexico School of Law and an LL.M. in Fashion Law from Fordham University School of Law.

APPENDIX

Galanda Broadman Files State Supreme Court Amicus Brief Regarding Police Violence Against Indigenous Women

On Friday, Galanda Broadman filed an amicus brief with the Washington State Supreme Court on behalf of the Washington Coalition for Police Accountability (WCPA), regarding the disproportionate violence suffered by Indigenous women at the hands of state police officers who are meant to protect them.

Gabe Galanda, Ryan Dreveskracht, and Shelby Stoner filed the brief for WCPA, supporting Jacqueline Salyer’s family’s appeal of a Washington State Court of Appeals decision that effectively permits the City of Tacoma to evade liability for its negligent retention of a patrol officer with a history of violence against women.

Jaqueline, a member of the Puyallup Tribe, was killed by Tacoma police officers in 2016.

WCPA is a coalition of families who have lost loved ones to police violence, advocates, experts, and organizations, working together on statewide policies to reduce police violence and increase accountability.

Over the last ten years, Galanda Broadman lawyers have successfully brought claims against Lakewood, Poulsbo, and Olympia’s police departments, as well as the King and Snohomish County Sheriff’s offices, for taking the lives of Indigenous men and women.

Defending Against ICE Attacks on Tribal Lands

By Gabriel S. Galanda

There are growing reports of federal ICE agents entering Tribal reservations and business establishments, including casinos, to stop, interrogate, and detain people. With ICE’s on-reservation activities causing fear and terror within Tribal communities, Tribal nations should consider how to defend against these attacks on their lands and communities.

First and foremost, several Tribal nations enjoy Treaty rights that require the United States Department of Homeland Security to notify, consult with, and obtain permission from Tribal leaders before ICE agents enter Tribal lands or facilities.  The Yakama Treaty of 1855, for example, requires all federal departments other than the Indian Department—today’s Bureau of Indian Affairs—to obtain permission from the Yakama Nation before entering the Yakama Reservation. 

The Yakama Treaty also contains a Treaty provision that requires federal law enforcement agents to consult with Yakama leaders before taking any action on Yakama Reservation against so-called “offenders against the laws of the United States.”

Every Tribal Treaty nation should review their Treaty to consider what reserved rights they have to require ICE to notify, consult with, and obtain permission from Tribal leaders before entering Tribal lands or facilities.

The Department Homeland Security’s own Directive on Consultation and Coordination with Tribal Nations (No. 071-04 (Dec. 15, 2002)) requires it and ICE to uphold “the various treaties and other agreements made between the governments” of the United States and Tribal people.  That federal law enforcement directive also requires the Department to consult with Tribal nations before taking any action that impacts the Tribes’ “inherent sovereign rights and governance over . . . their territories.” 

Both Tribal Treaties and this Directive provide a legal and political basis for Tribal nations to demand notice and consultation before ICE enters their territories.

In addition, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) emphasizes “the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world.” Article 30 of the UNDRIP provides:

Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned,

and States like the United States,

. . . shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.

These international human rights laws and norms provide Tribal nations additional legal and political grounds to stand up against ICE and demand that that their inherent sovereignty and territorial authority be respected. In this way, Tribal nations can help protect their people and communities from harm at the hands of ICE agents.

Gabe is an Indigenous rights attorney and the managing lawyer at Galanda Broadman. His practice focuses on complex, multi-party litigation and crisis management, representing Indigenous nations, businesses and citizens. He has been named to Best Lawyers in America in the fields of Native American Law and Gaming Law from 2007 to 2026, and dubbed a Super Lawyer by his peers from 2013 to 2025.

Protecting Tribal Youth in the Social Media Era

By Jessica Ditmore

In 1998, forty-six states, five U.S. territories, and the District of Columbia struck a landmark settlement with four of the nation’s largest tobacco companies, aiming both to recoup smoking-related health care costs and curb the industry’s deceptive advertising practices.[1] The pact, known as the Master Settlement Agreement (“MSA”), was set to pay out $206 billion over the next 25 years, creating a revenue stream for the states.[2]

Despite Big Tobacco’s harm to Tribal communities, Tribal nations were not included in that pact and later Tribal attempts to receive a portion of the $206 billion under the MSA were unsuccessful.[3] But heeding the lessons of the MSA debacle, Tribal nations have since sued Big Pharma and recently secured financial settlements in opioid class action litigation.[4] Tribes have now set their sights on Big Tech.

Mirroring earlier battles against Big Tobacco and Big Pharma, Tribal nations have sued Meta, the owner and operator of Facebook and Instagram, to redress Tribal youth addiction to social media.

In the wake of the Ninth Circuit’s recent decision in NetChoice v. Bonta, Tribes now have a unique opportunity to legislate, bring litigation, and shape policy regarding Tribal youth social media consumption. In doing so, Tribes can work to protect the health and welfare of their people while seeking damages against social media companies that are inflicting harm to their communities.

State and Tribal Lawsuits Against Meta to Protect Youth and Fight Deceptive Corporate Practices

In October of 2023, a bipartisan coalition of state attorneys general filed a federal lawsuit against Meta for harming adolescent mental health and contributing to the youth mental health crisis.[5] The complaint alleges that Meta specifically uses design features to keep users on the platform, creating addiction and compulsive use.[6] Like tobacco companies in the late 1900’s, the complaint alleges that Meta deceptively downplays the harmful effects of its social media platforms.[7] Documents leaked from within Meta by a whistleblower show the company has known about, yet hidden, the dangers of its platform for years.[8]

Over the last few years, families have brought suit in what has morphed into multi-district litigation (“MDL”) against Meta.[9] Most recently, several Tribal nations have also filed complaints against Meta.[10] For example, the Chickasaw Nation of Oklahoma sued Meta for damages for deliberately targeting adolescents through addictive algorithms and other harmful practices, which have disproportionately impacted vulnerable Tribal youth.[11]

All of the Tribal complaints highlight efforts the Tribal plaintiffs have put into their health and welfare programs and the additional strains the mental health crisis is causing their communities.[12] The complaints allege claims for racketeering, public nuisance, fraud, negligence, product liability, failure to warn, and unjust enrichment.[13]

Current Legal Status of Legislation to Protect Children from Addictive Social Media Feeds

In September, the Ninth Circuit published an opinion that affirmed an injunction against addictive algorithms under California’s SB 976, “Protecting Our Kids from Social Media Addiction Act”[14] The Act limits “addictive feed”—which is defined as media “generated or shared by users are, either concurrently or sequentially, recommended, selected, or prioritized for display” based “on information provided by the user, or otherwise associated with the user or the user’s device”—by prohibiting Meta from using any information provided by a minor user to decide what content to show that individual.[15]

The Act also prohibits minors from seeing how many likes, shares, or other forms of feedback a post has received within a personalized recommendation feed, and requires minors accounts to be private.[16]

Netchoice, an internet trade association whose members include Google (which owns and operates YouTube), Meta, Nextdoor, Pinterest, and X (formerly Twitter) challenged the Act on First Amendment grounds.[17] The Ninth Circuit opinion granted an injunction against the portion of California’s law hiding likes, shares and other forms of feedback because that regulation was content based, thus strict scrutiny applied.[18] However, it affirmed the district court’s denial of an injunction for the addictive feed aspect of the law because Netchoice neither had standing, nor provided enough facts to support a facial challenge.[19]

Notably, the Ninth Circuit court rejected Netchoice’s challenge that the Act’s “addictive feed” standard was unconstitutionally vague.[20] The Act adequately defined “addictive feed,” and its exceptions were such that a person of ordinary intelligence could understand.[21] When discussing the First Amendment challenge to the regulation of the algorithms themselves, the Ninth Circuit noted that an algorithm promoting a platform’s own message is likely to be protected speech.[22] Although, an algorithm that “respond[s] solely to how users act online,” merely “giving them the content they appear to want,” probably is not expressive.”[23]

The Ninth Circuit could not yet determine if the algorithms at issue in Netchoice were more expressive than responsive because the facts had not been sufficiently demonstrated to support a facial challenge and Meta lacks associational standing for its as-applied challenge.[24] That decision may very well be for another day.

Tribal Legal Considerations Moving Forward

The NetChoice opinion is notable because it could weaken Meta’s First Amendment defenses to lawsuits brought by state attorneys general and Tribal nations over the addictive nature and misleading marketing of social media platforms. If the “addictive feed” algorithms are not considered messaging or protected speech, but instead a product function, it strengthens the argument that there are viable Tribal product liability causes of action for the harm these companies are causing Tribal youth.

As the MDL and Tribal complaints move forward, the Netchoice opinion strengthens the case for states and Tribes to consider passing their own consumer protection statutes against social media platforms, possibly mirroring California’s. With Tribes currently suing Meta under general tort theories and federal RICO statutes, Tribal youth protection laws could create an independent Tribal statutory cause of action to be brought in Tribal Court.

That would open questions of Tribal enforceability against Big Tech, including whether Montana I or Montana II exceptions apply.[25] Considering the health and welfare implications of regulatory schemes like SB 976, the application of Montana II over Tribal statutory corollaries seems strong, despite its sparing application.[26]  If SB 976 ultimately withstands federal judicial scrutiny, Tribal nations will have even greater opportunity to protect Tribal youth and hold Meta and Big Tech to account for harm to those young ones.

Jessica is an associate attorney at Galanda Broadman. Her practice focuses on representing Tribal governments and businesses.

[1] Master Settlement Agreement, Settlement Agreement Between the Attorneys General of 46 States and the Participating Tobacco Manufacturers (Nov. 23, 1998), available at https://web.archive.org/web/20080625084126/http://www.naag.org/backpages/naag/tobacco/msa/msa-pdf/1109185724_1032468605_cigmsa.pdf.

[2] Id.

[3] Public Health Law Center, Roadmap to a National Settlement Agreement: E-Cigarettes (Mar. 2021), https://www.publichealthlawcenter.org/sites/default/files/resources/Juul-Roadmap-to-NSA.pdf.

[4] Abbie VanSickle, "Native American Tribes Sue Over Opioid Crisis," The New York Times, Feb. 1, 2022, https://www.nytimes.com/2022/02/01/health/opioids-native-american-tribes.html.

[5] State of Arizona, et al. v. Meta Platforms, Inc., et al., No. 4:23-cv-05448 (N.D. Cal. Oct. 24, 2023), https://cand.uscourts.gov/wp-content/uploads/cases-of-interest/InRe-SocialMedia-Adolescent-Addiction-Personal-Injury-Products-Liability-Litigation/MDL-3047-Multistate-Attorneys-General-Complaint.pdf.

[6] Id. at ¶¶ 1-6, 118.

[7] Id. at ¶¶ 6-7, 53.

[8] Id. at ¶ 594.

[9] Plaintiffs’ Second Amended Master Complaint (Personal Injury), In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, No. 4:22-MD-03047-YGR (N.D. Cal. Dec. 15, 2023), https://cand.uscourts.gov/wp-content/uploads/cases-of-interest/InRe-SocialMedia-Adolescent-Addiction-Personal-Injury-Products-Liability-Litigation/MDL-3047-Personal-Injury-Plaintiffs-Second-Amended-Master-Complaint.pdf.

[10] Native News Online Staff, The Chickasaw Nation Sues Social Media Juggernauts, Native News Online (Sept. 26, 2025), https://nativenewsonline.net/health/the-chickasaw-nation-sues-social-media-juggernauts.

[11] The Chickasaw Nation of Oklahoma v. Meta Platforms, Inc. f/k/a Facebook, Inc. et al, No. 3:25-cv-07846-YGR (N.D. Cal. Sept. 15, 2025), https://www.pacermonitor.com/public/case/60157049/The_Chickasaw_Nation_of_Oklahoma_v_Meta_Platforms,_Inc_fka_Facebook,_Inc_et_al, https://turtletalk.blog/2025/09/17/chickasaw-nation-sues-social-media-platforms/.

[12] See id. at ¶¶ 15, 24-26.

[13] See id. at ¶¶ 304- 393.

[14] NetChoice, LLC v. Bonta, 23 F.4th 1048 (9th Cir. 2024), https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/09/25-146.pdf.  

[15] Id. slip opinion at 9, citing 2024 Cal. Stats. ch. 321, SB 976, 2023–24 Reg. Sess. (Cal. 2024) (codified at Cal. Health & Safety Code §§ 27000–07).

[16] Id.

[17] NetChoice, LLC v. Bonta, slip op. at 12.

[18] Id. at 23.

[19] Id. at 39-40.

[20] Id. at 36-37.

[21] Id.

[22] Id. at 18; see TikTok Inc. v. Garland, 604 U.S. __, 145 S. Ct. 57, 72 (2025); Moody, 603 U.S. at 731 (discussing Arkansas Ed. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998)); see also id. at 732–34, 738.

[23] Id. (citing Moody, 736 n.5); accord id. at 746 (Barrett, J., concurring).

[24] Id. at 32-33, 39-40.

[25] Montana v. United States, 593 U.S. 345, 565-566 (1981).

[26] United States v. Cooley, 593 U.S. 345, 354 (2021) (quoting Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330 (2008)).

Gabe Galanda Quoted on Book Cover: "Who Gets to Be Indian?"

Gabe Galanda is quoted on the back cover of Dina Gilio-Whitaker's new book, "Who Gets to Be Indian?" He is also cited and quoted in the book regarding neocolonial Tribal disenrollment.

“Indigeneity is caught between truth tellers and tricksters. With abiding concern for tribal nationhood, Dina Gilio-Whitaker boldly espouses our truths while confronting the tricksters among us. Indigenous America needs more truth tellers like her and books like this.”
—Gabe Galanda, Indigenous rights attorney

You can buy her book here.