The “Federal Indian”: Still Indian Despite Disenrollment

By Bree Black Horse

The Federal Government’s definition of an “Indian” is, in some instances, independent of an individual Indian’s tribal membership status.  Several federal laws confer various federal benefits and protections to individual Indians who are no longer, or who may have never been, members of a federally recognized tribe. Consider: the "federal Indian."

For instance, the Indian Arts and Crafts Act (IACA), 25 U.S.C. § 305, does not require an individual Indian to be a member of a federally recognized Indian tribe in order to incur federal protection of his or her Indian arts and crafts products.  IACA defines an “Indian” as both a person who is a member of an Indian tribe as well as a person who is a certified “Indian artisan.”  An “Indian artisan” is an individual who is certified by an Indian tribe as a non-member Indian artisan.  The statute entitles both tribal members and non-member Indian artisans to protections based on their designation as an “Indian,” irrespective of their underlying tribal member status.

Moreover, the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901, applies to Indian children who are members of or are eligible for membership in an Indian tribe.  ICWA defines an “Indian child” as an unmarried person under the age of eighteen who is either a member of an Indian tribe or who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.  ICWA, therefore, likewise affords federal protections to “Indian children” regardless of their underlying tribal member status.

Further, the Indian Health Care Improvement Act, 25 U.S.C. § 1601, generally defines an “Indian” as any individual who, irrespective of whether he or she lives on or near a reservation, is a member of a tribe, including terminated and state recognized tribes, or who is a first or second degree descendant of a tribal member for the purposes of awarding scholarship and grant funding.  An individual who is considered by the Secretary of the Interior to be an Indian for any purpose or who is determined to be an Indian under the regulations promulgated by the Secretary also is considered an “Indian” for scholarship and grant purposes.

Although the scope of benefits accorded to Indians who lack membership in a federally recognized tribe is limited, this sampling of federal statues shows that the Federal Government’s trust responsibility to individual Indians does not conclude as a result of an individual Indian’s failure to enroll or of a tribal government’s disenrollment of that person.  In the view of the United States, at the very least, Indians do not cease to be Indians merely because they lack a certain political status as “members of a federally recognized Indian tribe.” 

But getting the Indian Trustee to do anything to protect the Indian—whether tribal member or “federal Indian”—per the United States’ moral trust obligations, is another story.

Bree Black Horse is an Associate in the Seattle office and a former Clerk for the U.S. District Court of Montana.  She is an enrolled citizen of the Seminole Nation of Oklahoma.  Bree can be reached at (206) 735 – 0448 or bree@galandabroadman.com. 

 

Wash. State Recognizes "Honor" of Eagle Feathers at Graduation Ceremonies

The Washington State Office of Public Instruction and its Superintendent Randy Dorn recently issued a letter to state schools regarding "tribal students wearing items of cultural significance such as eagle feathers during graduation ceremonies."  The State concludes that a student wearing an eagle feather "should not be viewed as a violation of the graduation ceremony dress codes."

Gabe Galanda to Teach Seattle Lawyers of Color Re "Building a Book of Business"

Gabe Galanda will reprise his part of a presentation, "Building a Book of Business for Lawyers of Color," on behalf of the King County Bar Association on March 30 at 6 PM.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with offices in Seattle and Yakima, Washington and Bend, Oregon. He descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.

 

"County Acted Negligently And With Deliberate Indifference" Towards Native Inmate

The Mason County Journal has chronicled our pending U.S. District Court federal civil rights case against the Mason County Jail and its associates, arising from the suicide of a Skokomish man while in jail.  View full article.  

Ryan Dreveskracht is quoted at length:

“(There is a) civil right to not be treated with deliberate indifference and that includes having your known medical illnesses cared for, and here they knew that he had medical issues and they were deliberately indifferent,” Dreveskracht said. . .
“There are numerous instances here where we believe that the county acted negligently and with deliberate indifference,” Dreveskracht said. “We want to hold the county liable for their unofficial policies of ignoring mentally ill inmates and outright failure to implement sufficient suicide prevention procedures. “There was, and still is, a complete absence of training to address mentally-ill inmates, and a lack of funding to provide that necessary training.” . . .
“It happened in 1999 to a young man in an eerily similar situation, yet the county’s policies have not changed,” Dreveskracht said. “We don’t want this to happen again and want to hold the county accountable.”

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle.   He can be reached at (206) 909-3842 or ryan@galandabroadman.com. 

 

Busy 2016 Indian Law Calendar for Washington State Supreme Court

The Washington State Supreme Court will hear at least three important Indian law cases this year, showing a steady increase from the past several years when it has typically heard between zero and two Indian law cases.  

The Court is scheduled to hear City of Snoqualmie v. Constantine regarding the constitutionality of property tax exemptions for tribally-owned property; Lundgren and Lundgren v. Upper Skagit Indian Tribe, which deals with sovereign immunity from adverse possession claims; and an ICWA active efforts case, In re the Adoption of T.A.W., R.B. and C.B. v. C.W. 

Below is a chart of the Court and its Justices' voting patterns in tribal cases, over the last decade. Stay tuned for what could be a busy year in Washington State Indian law.

Case Pro-Tribal Interests Anti-Tribal Interests
Wright (tribal corporate sovereign immunity) - 2005 Madsen
Owens
Fairhurst
C. Johnson
J. Johnson
Eriksen (tribal detention of traffic offender in fresh pursuit, off reservation) - 2011 Owens
C. Johnson
Stephens
Wiggins
Fairhurst
Madsen
J. Johnson
Jim (state jurisdiction over Treaty in lieu sites) - 2012 Owens
C. Johnson
Fairhurst
Stephens
J. Johnson
Madsen
Wiggins
AUTO I (tribal indispensability to third-party fuel compact challenges) - 2012 Madsen
Owens
Fairhurst
González
C. Johnson
J. Johnson
Stephens
Wiggins
Clark (state search warrant execution in Washington Indian Country) - 2013 Unanimous
Madsen
C. Johnson
Owens
J.Johnson
Stephens
Wiggins
Gonzalez
McCloud
Fairhurst (Opinion)
Outsource Services Management, LLC v. Nooksack Business Corporation (contractual waiver of sovereign immunity) - 2013 McCloud
González
Owens
Madsen
C. Johnson
Fairhurst
Stephens
Wiggins
Worswick*
State v. Shale (state criminal jurisdiction over Indian on another tribe’s reservation trust lands) - 2015 Unanimous
Madsen
C. Johnson
Owens
Fairhurst
Stephens
Wiggins
Gordon
McCloud
YuGonzalez (Opinion)
AUTO II (constitutionality of state-tribal tax agreements) - 2015 Unanimous
Madsen
C. Johnson
Owens
Fairhurst
Stephens
Wiggins
Gordon
McCloud
YuGonzalez (Opinion)
City of Snoqualmie v. Constantine (constitutionality of property tax exemption for tribally-owned property) TBD
Lundgren and Lundgren v. Upper Skagit Indian Tribe (sovereign immunity; adverse possession) TBD
In re the Adoption of T.A.W., R.B. and C.B. v. C.W. (ICWA active efforts) TBD

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.

G.Galanda, R.Dreveskracht to Discuss "Origins of Disenrollment" at UDub Law on Feb. 26

On Friday, February 26 at 4:30 PM, in Room 127, Gabe Galanda and Ryan Dreveskracht will join Professor David Wilkins to discuss the "Origins of Disenrollment."  They will specifically discuss the "tension between tribal self-determination and federal trust duty and moral obligation."  The forum is being sponsored by the UW Law Diversity Committee.

Law360 Quotes Anthony Broadman Regarding State Gaming Compact Gamesmanship

Anthony Broadman is quoted by Law360 today in "States Vent Frustration On Vendors In Tribal Compact Rows."

“They can’t target the tribal gaming authority itself, so what do they do? They go after the only conceivable regulatory nexus they have, and that’s with non-Indians working on the reservation,” Broadman said. . . .
“It’s a pretty old page from a pretty old playbook,” he added.

Anthony Broadman is a founding partner of Galanda Broadman, PLLC.  Practicing out of Galanda Broadman's Bend, Oregon office, Anthony focuses on company-critical business litigation and representing tribal governments in public affairs, taxation, and economic development matters.

Ryan Dreveskracht Publishes "Ethics In Tribal Business Transactions"

Ryan Dreveskracht's "Ethics in Tribal Business Transactions," is featured in this month's edition of Tribal Business Journal.  An excerpt:

With success comes responsibility.  For the sake of all that Indian Country has obtained in this era of self-determination, tribal businesses now have an obligation to appreciate and nullify the danger that non-Indian businesses and their attorneys inadvertently pose to tribal sovereignty.  Indeed, the days of tribal lawyers playing “hide the ball” in business deals between tribal and non-tribal parties might need to be a thing of the past.  Instead, taking preemptive steps to safeguard non-Indian businesses from themselves is not only good business, it is the defense necessary to deter the erosion of those fundamental principles of Indian law that have allowed Indian Country to flourish into the present day. 

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle.  His practice focuses on representing tribal governments and businesses in gaming, public affairs, taxation, and economic development.  He can be reached at (206) 909-3842 or ryan@galandabroadman.com. 

Anthony Broadman Named Oregon Indian Law Section Chair

Anthony Broadman has been appointed to serve as Chairperson of the Oregon State Bar Association Indian Law Section.

Anthony is the past Chair of the Washington State Bar Association Administrative Law Section, and serves as the Editor of the Indian Law Newsletter, published by the Washington State Bar Association Indian Law Section.  

Practicing out of Galanda Broadman's Bend, Oregon office, Anthony focuses on company-critical business litigation and representing tribal governments in public affairs, taxation, and economic development matters.

Anthony regularly consults with businesses and tribal governments regarding crisis response, risk management, taxation, and legislative strategy.

He has also defended businesses and governments in catastrophic injury lawsuits and claims and tried jury trials in state and federal court.  A former newspaper reporter, he is skilled at assisting organizations in responding to public and private crises. 

Anthony is an avid cyclist and hunter.  He enjoys skiing with his wife and kids in Central Oregon and he serves on the Grace First Lutheran Church Council.