Hollywood's Portrayal Of Tribal Disenrollment Is Another Bad Look

Amidst the furor about Adam Sandler's racist depiction of Indians in his forthcoming movie, consider another narrative about Indian C0untry that is increasingly being told by Hollywood and its Indian actors: Disenrollment. Two examples: In the first episode of the second season of Red Road last month, Phillip Kopus (Jason Mamoa) learns he has been disenrolled from the fictional Lenape Tribe for having been convicted after a shoot-out.

In last season's House of Cards---which, like Sandler's "satire," is produced by Netflix---the following plotline unfolded:

Doug Stamper travels to a Missouri casino owned by the fictional “Ugaya” Native American tribe and run by a greedy tribal chairman that has recently disenrolled an unknown number of tribal members. Leaders of the band that was booted meet with the Assistant Secretary of Indian Affairs because they want to be federally recognized . . . which would allow them to be able to open a casino. Federally recognized tribes have government-to-government relationships with the U.S.

The Assistant Secretary of Indian Affairs was played by Gary "Litefoot" Davis, who, in his role, says something about disenrollment to the effect of: "The federal government does not get involved in internal tribal affairs."  As Fusion columnist wrote about the House of Cards episode:

While fans and critics of the show alike are getting a kick out of pointing out the incorrect minutiae within House of Cards, this Native is happy that a popular scripted series is touching upon a very real modern issue for Indian Country . . . and that they featured real Native American actors no less!

Although it is certainly refreshing that Native actors are acting a true plotline in Indian Country today, it is regrettable that our Hollywood portrayal to mainstream America relates to our self-termination.  That only fuels non-Indian belief that tribalism should end.

It is also too bad that the attention that only Hollywood can draw to issues needing social justice, isn't being brought to very real, yet noble, issues like Indian Country's modern fight against tribal teen suicide, reservation domestic violence, and Indian over-incarceration.

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

New Washington Law Empower Tribes to Fight Prescription Drug Abuse

Today, Governor Jay Inslee signed a bill giving tribal law enforcement and prosecutors access to an important tool to fight prescription drug abuse.  The Muckleshoot Tribe spearheaded the bill's passage.

House Bill 1637 will provide tribal authorities access to Washington's Prescription Monitoring Program---or "PMP"---which tracks sales of prescription opiates and other drugs so officials can better investigate and prosecute abuse.

Previously, the Washington Department of Health denied tribal access to the PMP, insisting that state law barred tribal police and prosecutors from participating in the program.

“This law will empower tribal authorities to fight illegal prescription drug use on reservations in Washington State, where drug-induced deaths are highest among Native Americans and Alaska Natives,” said Galanda Broadman associate Jared Miller, who wrote an article about the issue last year and testified in support of the bill in the Senate Health Care Committee this session.

Jared Miller’s practice focuses on tribal court litigation and representing businesses and tribal governments in public affairs. Jared is licensed in more than a dozen tribal jurisdictions, where he litigates civil matters. He can be reached at (206) 919-5044 and jared@galandabroadman.com

Dreveskracht, Galanda Publish ABA "Tribal Court Litigation" Deskbook Chapter

The American Bar Association Business Law Section just published the 2015 edition of Annual Review of Developments in Business and Corporate Litigation, which includes a 41-page Tribal Court Litigation chapter co-authored by Indian litigators Ryan Dreveskracht and Gabe Galanda of Galanda Broadman. An excerpt from the introduction:

“Indian law,” a body of tribal, state, and federal law, is the foundation for every transaction arising in or from Indian Country. Almost every arena of commercial practice now intersects with Indian law, including tax, finance, merger and acquisition, antitrust, debt collection, real estate, environmental, energy, land use, employment, and litigation. Therefore, virtually every business lawyer or litigator needs to have some working knowledge of Indian law. This chapter seeks to provide that basic understanding.

Gabe served as the Editor-in-Chief of Annual Review for the 2007 through 2010 editions, and has co-authored the Tribal Court Litigation chapter each year since 2006. This is Ryan’s fourth year co-authoring the chapter, and his second year as its lead author.

The Potentially Ruinous Tribal Financial Implications of Disenrollment

We have previously written about how disenrollment financially ruins affected tribal members.  Now consider how disenrollment can cause financial ruin to those tribes engaged in the colonialist practice. In 2013, Jared Miller wrote a foretelling piece for Indian Country Today Media Network, titled "Disenrollment is Bad for the Bottom Line":

"Disenrollment is a business matter. That’s because tribal governments abandoning members en masse will harm their own bottom line by engendering negative media and investor perceptions. More critically, they threaten the bottom line of Indian businesses everywhere. . .

Ugly battles like the one at Nooksack have potential to deeply affect tribes’ bottom lines. That’s partly because non-Indians may view such controversies as indicators of greed and corruption. Investors may also conclude that partnering with a tribal government engaged in abandoning its own citizens is not worth the risk to investment."

Now 2 1/2 years after starting a mass disenrollment campaign against the Nooksack 306, the Nooksack Tribal Council is shuttering one of its casinos---severing one of its economic lifelines, along with Tribal ancestral lines.

Perhaps that is because the Tribal Council axed various Nooksack 306 tribal members who helped manage Nooksack's gaming enterprise and keep it well into the black for the last several years; or because the Tribal Council invited an NIGC investigation into gaming revenue distributions that violate IGRA.

Or because, as reported by the Bellingham Herald, "the tribal council was too preoccupied with a controversial effort to disenroll hundreds of tribal members" to properly run the Tribe or its businesses.

"Apparently, the internal strife of expelling tribal members brought all other government affairs to an extreme slowdown."

The same financial fate has met the Picayune Rancheria of Chukchansi Indians, which "has been disenrolling members for decades" for sake of larger Indian gaming revenue per-capita distributions to remaining tribal members, and last year witnessed a federal judge shutter its lucrative casino.

Not only are both the enrolled and disenrolled Chukchansi Indians now suffering financially---the latter far more harshly than the former---but "the casino closure has significantly affected Madera County’s economy and the nearby communities."  There is no telling when Chukchansi's casino will reopen.

Indeed, disenrollment is bad for the bottom line--everyone's bottom line.  It is also karmic.

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

Disenrollment Lawyering Deemed "Immoral and Unethical"

In a historic stance against disenrollment, the National Native American Bar Association has declared:

that it is immoral and unethical for any lawyer to advocate for or contribute to the divestment or restriction of the American indigenous right of tribal citizenship, without equal protection at law or due process of law or an effective remedy for the violation of such rights.

In a paper he recently published for the Federal Bar Association's 16th Annual Indian Law Conference in Washington, DC---"Exposing Abramoff’s Playbook: Exploiting, or Filling, the Ethical Void for Tribal Lawyers"---Gabe Galanda has likewise decried disenrollment lawyering as unethical and immoral:

when lawyers advocate, cause or facilitate any disenrollment proceeding that lacks a good faith basis in law and fact, they are violating ethical rules or norms—and acting immorally. That is especially the case when they carry out the termination of enrolled Indians who decry Tribal Council factionalism.

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

We're 5! Thanks for Your Support

Galanda Broadman Profiled by Law360 as "Nimble Boutique"

As Galanda Broadman celebrates our 5th-year anniversary today, we are honored to have been featured by Law360 as a "go to" tribal boutique law firm nationally.

Handling the array of everyday legal matters for tribes and for the growing cadre of business-minded members are the relatively small but nimble boutiques like . . . Galanda Broadman PLLC . . .

Gabe Galanda, a name partner of the growing, 5-year-old Galanda Broadman, said boutiques like his can more nimbly adapt to price pressures given that there is less overhead to shoulder.

"We see ourselves as filling niches that big firms cannot fill. We increasingly represent tribal individuals . . .," Galanda said, adding that the firm can also often represent tribe members without running into the conflicts — with, say, a developer or energy company — that a larger law firm might hit upon. . . .

Galanda added that his boutique has regularly worked with larger law firms.

"We certainly collaborate with a lot of firms that would be styled as competitors. We have hired them, and we have been hired by them," Galanda said.

Galanda Broadman was recently named to the 2015 Edition of U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law. With offices in Seattle, Washington and Bend, Oregon, the firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in matters of Indian Treaty rights, tribal sovereignty and taxation.  

Gabe Galanda: Paskenta Civil RICO Suit "A Proxy for Disenrollment"

Law360 quotes Gabe Galanda regarding a civil RICO lawsuit filed in California federal district court by a Paksenta Tribal Council faction against a family of ousted Tribal leaders.

Gabriel S. Galanda of Galanda Broadman PLLC says that the recent complaint essentially brings a battle over tribal membership, which affects who profits from tribal revenues, under the cover of a RICO suit.

‘‘That lawsuit is designed to cause the disenrollment of the defendants,” Galanda said. “In my estimation, it is not designed to expose mob-style racketeering or claw back so-called ill-gotten gains; it’s a proxy for disenrollment.”

The court may be leery of the suit, as federal courts have shown an unwillingness to get involved in tribal disenrollment conflicts, Galanda said.

The 171-page lawsuit (hardly the short and plain statement of grounds mandated by Rule 8(a)(2)) is riddled with allegations of "internal" or "intramural" tribal matters, in which courts---especially U.S. District Courts---are loath to involve themselves.  Dismissal motion practice is sure to come.

More broadly, a Tribal faction's initiation of dubious civil RICO litigation against their adversaries, is yet another new lawyer-designed play for Abramoff's Playbook.

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

Federal Court Rules No Tribal Exhaustion Required For ERISA Claim Against Casino

By Joe Sexton

A Kansas federal court’s decision further limiting the jurisdiction of tribal courts in the employment realm, is a decision that tribal governments operating commercial enterprises in Indian Country must read.

The federal district court held that there is no tribal court jurisdiction over a tribal casino employee’s ERISA claim based on the health care insurance benefits the tribe offered to casino employees.

The Sac & Fox Tribe had argued that the casino employee had failed to exhaust tribal court remedies before filing suit. The court specifically ruled that in enacting ERISA, Congress preempted tribal court authority when it extended concurrent jurisdiction over ERISA claims to both state and federal courts, yet did not extend that concurrent jurisdiction to tribal courts.

Rather predictably, among other case law on statutory pre-emption noted in the decision, the court relied heavily on the infamous Supreme Court decisions in Montana v. U.S. and Nevada v. Hicks.

As the court explained, tribes offering their government employees health care insurance benefits under “governmental plans” are exempted from regulation under ERISA. But the exception for “governmental plans” afforded under ERISA does not extend to employees performing commercial activities for tribal entities, like casino employees or the employees of any other tribally owned “commercial” enterprise.

Therefore, tribal governments may be held liable for claims brought under ERISA by employees working for tribal casinos or some other tribal government program that is not exempted under ERISA.

Yet, without the tribal court having a say as to those claims.

This ruling from Kansas limiting tribal court authority is likely a bellwether of how other federal courts will come down on ERISA claims in Indian Country.  Tribes should take heed.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and joe@galandbroadman.com.

Wash. St. Supremes Further Tangle the PL 280 Web in State v. Shale

By Anthony Broadman

The Washington State Supreme Court wove new threads into the already tangled web of Washington partial P.L. 280 jurisprudence today.

The practical result of Washington v. Shale was predictable: Washington has criminal jurisdiction over an Indian who commits a crime on the reservation trust land of a Tribe other than his own. The Court observed that such jurisdiction was probably concurrent with the Tribe’s jurisdiction (under Lara).

After a lengthy exposition of Washington’s version of P.L. 280, retrocession, and criminal jurisdiction over tribal members, the Court held that on the Quinault reservation, the federal government has accepted retrocession of state jurisdiction over members of the Quinault Indian Nation. Because the defendant was not Quinault, jurisdiction over him had not been retroceded.  So the state possessed jurisdiction over him under P.L. 280.

But at least two aspects of the decision are concerning.

First, the case deals directly with the Quinault Nation’s jurisdiction over Indians on its reservation trust lands, and the tribe appears to have watched idly while a state court unilaterally limited Quinault authority. Prudentially speaking, the tribe might have wanted state jurisdiction over this particular crime: failing to register as a sex offender. But if it did, it might have entered into an extradition arrangement, asserted its sovereignty and expressly allowed the arrest and prosecution, or participated in the case and helped to fashion a remedy that did not put tribal jurisdiction in the sole hands of a state court.

Second, the Court delved into a Bracker approach, which is probably inappropriate on these facts. It is not clear whether Bracker can ever apply in a criminal context (it is difficult to see how it would since Tribes rarely possess criminal jurisdiction over non-Indians). And it never applies to Indians in Indian Country. Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 99 (2005). Presumably had the Quinault Nation participated in the case, even as a friend of the Court, this confusion might have been avoided.

In all, unless overturned---perhaps on reconsideration as has been known to happen before the Court---Shale makes clear that Washington State has criminal jurisdiction on Quinault Reservation trust land for criminal prosecution of an Indian, if that Indian is not Quinault. Even worse, tribes with retrocessional situations similar to that of Quinault will find themselves caught in the same, more-tangled web.

More generally, Washington tribes should pay very careful attention when they or tribal members are invited to step into the parlor of today's Washington State Supreme Court.

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.