Washington State Reforms "Felony Bar" Statute to Enhance Police Accountability

From left to right, Dani Bargala-Sanchez, Muckleshoot Councilman Donny Stevenson, Rose Davis, Gabe Galanda, and State Representative My-Linh Thai, after the signing of ESSB 5263

By Gabriel S. Galanda and Ryan Dreveskracht

Yesterday Governor Jay Inslee signed legislation into law that will help Indigenous and other victims of police violence uncover the truth and obtain justice. 

Governor Inslee signed ESSB 5263, the so-called “felony bar” reform bill, which was primarily sponsored by Senator David Frockt and advanced by the family of Renee Davis, Muckleshoot and Suquamish Tribes, ACLU of Washington, Washington State Association for Justice, and Washington Coalition for Police Accountability.

The Washington Legislature enacted RCW 4.24.420 as part of the 1986 tort reforms.  According to the Seattle Times, that law was passed “as part of a national tort reform movement . . . after a California high school student allegedly stealing spotlights from the roof of a school fell through a skylight and sued” the property owner.  The law was not intended to shield police departments from liability.

Since the enactment of the statute in Washington, however, municipalities have successfully asserted the defense to completely bar wrongful death or personal injury claims arising from the deadly or excessive use of force.  In other words, local governments and officers have evaded transparency and accountability.

For example, in 2019 the King County Superior Court dismissed a wrongful death action brought by the family of Renee Davis, a pregnant Muckleshoot mother who was killed by two King County Sheriff’s deputies during a welfare check in 2016. 

Less than a minute after their arrival and without any plan, the deputies rushed into Renee’s home, past two of Renee’s three children, and into her bedroom with guns drawn.  They found Renee lying in her bed, covered in a blanket up to her neck, and staring blankly at the door.  

Less than one minute later, they shot Renee dead.  She was armed—as the deputies were warned she might be—but the deputies’ accounts of whether and how she allegedly pointed it at them materially differ.  She slumped over and said, “It’s not even loaded,” before falling off the bed onto the floor.

The Superior Court dismissed the Davis family’s case pursuant to RCW 4.24.420, regretting that “this case illustrates in a number of respects some issues that you can tell I find somewhat troubling in terms of holes or gaps in the law.”  

Last summer, the Washington State Court of Appeals affirmed the trial court’s order also with regret, explaining “that Davis’s death is tragic” and echoing the trial court’s sentiment that the application of RCW 4.24.420 here is problematic because it precludes claims where law enforcement officers’ actions and training may have been unreasonable, given their knowledge that the individual they were confronting was suicidal and armed.”  The Court of Appeals later reversed itself and remanded the Davis family’s case for trial.

RCW 4.24.420 also contributed to the King County Superior Court’s recent dismissal of a lawsuit arising from the Seattle Police Department killing of Charleena Lyles, which has since also been overturned by the Washington State Court of Appeals and remanded for trial.

RCW 4.24.420 originally provided, in full: 

It is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence accusing the injury or death and the felony was a proximate cause of the injury or death.  However, nothing in this section shall affect a right of action under 42 U.S.C. Sec. 1983. 

As the original law specifically noted, an injured party may still bring federal civil rights claims against law enforcement officers who use deadly or excessive force notwithstanding felonious conduct.  Federal civil rights claims, however, require a higher standard for misconduct are subject to the prohibitive “qualified immunity” doctrine.

As illustrated by the Davis and Lyles cases, Washington trial courts have applied RCW 4.24.420 in a manner that has prevented juries from deciding cases that involve the deadly or excessive use of force, including in “they said, she’s dead” cases. Courts have dismissed cases against law enforcement agencies on summary judgment based on the original statute by impermissibly weighing evidence and making credibility determinations—all while no felony conviction exists and the only non-law enforcement witness is dead. 

Not only have juries been prevented from hearing the case and helping find the truth about officer-involved killings, but cases against the government have been dismissed where the involved officer’s testimony is the only direct evidence of alleged felonious conduct. 

This year, the State Legislature clarified the intent of RCW 4.24.420 by passing ESSB 5263.  The statute now provides in pertinent part:

(2) In an action arising out of law enforcement activities resulting in personal injury or death, it is a complete defense to the action that the finder of fact has determined beyond a reasonable doubt that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death, the commission of which was a proximate cause of the injury or death. 

(3) Nothing in this section shall affect a right of action under 42 U.S.C. Sec. 1983.

Law enforcement agencies must now prove beyond a reasonable doubt—against the highest standard of proof—that (1) an individual committed a felony and (2) the commission of that felony proximately caused their injury or death.  This means that barring the application of some other affirmative defense, each and every case will be allowed to proceed to trial for fact-finding and truth-telling, because the statute clarifies that this determination be made by juries, not judges on pretrial motions.

For those whose loved ones are taken at the hands of law enforcement, we hope the truth will now prevail and justice will be served. For our entire society, we hope others’ lives might now be spared from police violence.

Gabe Galanda and Ryan Dreveskracht are partners at Galanda Broadman, PLLC, an Indigenous rights firm headquartered in Seattle. On behalf of the Davis family, Gabe and Ryan thank Sens. David Frockt and Jaime Pedersen and Reps. Drew Hansen, Debra Lekanoff, My-Linh Thai, Tarra Simmons, Roger Goodman, John Lovick, as well as Katrina Johnson, Chairman Leonard Forsman, Amber Lewis, Dylan Doty, Alison Holcomb, Eric Gonzalez Alfaro, Nancy Talner, Larry Shannon, Kelli Carson, Michael Temple, Tiffany Cartwright, Leslie Cushman, Teri Rogers Kemp, and Mayor Jenny Durkan, for helping getting ESSB 5263 passed into law.

Gabe Galanda Delivers "Indigeneity Crisis" Lecture At His Alma Matter

Today Gabe Galanda delivered a lecture titled,“Indigeneity Crisis: Language and Law" at his alma mater, the University of Arizona College of Law.

Gabe reprised a recent lecture he gave at Harvard University, explaining the legal transmutation of Indigenous kinship societies and members into “tribes,” “Indians,” “nations,” and “citizens” and how it contributes to identity crises for a great many Indigenous nations today.

He explained how numerous Indigenous nations:

• No longer include or enroll their babies or children as citizens;

• Disenroll elders, matriarchs, youth, and families through neo-colonial political processes;

• Dishonor and disturb, even exhume and DNA test, ancestors for the sake of disenrollment;

• Discriminate based on racial shades of “Indian blood” and fictional blood quantum percentages derived from debunked European inheritance and Eugenics theory; and

• Calculate tribal citizenship based on how much money is received—or could be received—in gaming “per capita” distributions. 

Gabe urged that traditional Indigenous kinship principles be infused into modern Indigenous nationhood citizenship laws and practices, including constitutions and membership ordinances.

Gabriel S. Galanda is the Managing Lawyer of Galanda Broadman, PLLC, an Indigenous rights law firm. He belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.

Washington DFW Pays Tulalip Fishermen $50,000 to Settle False Arrest Suit

Hazen Shopbell, Gabe Galanda, and Anthony Paul outside of the Skagit County Superior Court in 2019

Originally posted on Last Real Indians

The Washington State Department of Fish and Wildlife (WDFW) has paid Tulalip Tribal fishermen Hazen Shopbell and Anthony Paul $50,000 to settle their false arrest claims against the agency and its officers.

In June of 2016, Shopbell and Paul were arrested at the Everett Marina as they prepared to participate in the lucrative opening of Tulalip crab fishing season.  Over the prior year, the two Tulalip fishermen had developed a multi-million dollar wholesale distribution business within the Puget Sound tribal shellfish market that dominated non-tribal wholesale fish dealers.

Shopbell, who as a Tulalip youth dreamed of being a Treaty fisherman, later described the success of his and Paul’s efforts to a federal court judge: “We were able to bring Tribal representation to the docks. . . . [W]e increased the price per pound that Tulalip fishermen were paid for their salmon and crab—at times by several dollars per pound. It truly was that rising waters lifted all canoes.”

Unconvinced that Shopbell and Paul’s new business could be as successful as it was legally,  WDFW Detective Wendy Willette commenced a prolonged investigation of the Tulalip fishermen beginning in early 2016. According to her investigation notes she believed Shopbell and Paul were engaged in an illegal monopoly and “reverse racism” against non-tribal fish dealers.

Willette’s investigation culminated in her organizing and leading a multi-agency law enforcement raid of Shopbell and Paul’s homes and business on June 13, 2016. During the raid, three WDFW police officers arrested the two Tulalip fishermen and kept them handcuffed in the back of locked patrol vehicles for nearly two hours. 

Meanwhile Willette and other WDFW officers rifled through their homes for hours in the presence of their wives and young children, and confiscated various personal items like their children's iPads.

After those officers realized Shopbell and Paul should not have been arrested, and admitted it was due to a “miscommunication,” they released them. WDFW later returned what its officers had confiscated from their homes. 

But the damage had already been done. The high profile raid and arrests caused Tulalip and other tribal fishermen to fear selling shellfish to Shopbell and Paul’s business. Within months, their distribution business shuttered and the wholesale price of shellfish at Tulalip plummeted.

In 2018, Shopbell and Paul sued WDFW, Willette, and the other involved officers for federal and state civil rights violations before the U.S. District Court for the Western District of Washington. In retaliation, WDFW and Willette asked six separate federal, state, and local prosecutor’s offices to charge the fishermen with shellfish trafficking crimes. 

Willette partially succeeded. Both Pierce and Skagit County prosecuting attorneys brought felony trafficking charges against Shopbell and Paul, but judges dismissed all charges.

The Pierce County charges were dropped after the prosecutor discovered that WDFW withheld crucial evidence that supported “a complete defense in the case.” The Skagit County Superior Court noted in its dismissal that Willette improperly “shopped the prosecution.” 

Yet five years after Willette commenced her racially motivated investigation of Shopbell and Paul, they are still not totally free.

Last week the Washington Court of Appeals reversed the Skagit County court’s dismissal, ruling the judge did not make an express finding of WDFW’s bad faith. The appeals court sent the criminal charges back to the Skagit court for an evaluation of Willette’s bad faith. 

Shopbell and Paul received another unfavorable legal result in February, when the Western District of Washington dismissed their federal civil rights claims.  The federal court relied upon the controversial qualified immunity doctrine, which generally shields law enforcement officers from liability or accountability. That decision, however, left their state law claims intact. 

Rather than take Shopbell and Paul's remaining claims to trial in state court, WDFW settled them without admitting liability.

Before being dismissed from the federal court, Shopbell told the judge: “I have grown up listening to the stories of the Fish Wars and U.S. v. Washington. I have been taught by my Elders how the State of Washington and WDFW waged war against the Tulalip Tribes. . . . I know state police racism. We all do at Tulalip.”

Galanda Broadman, PLLC, represents Hazen Shopbell and Anthony Paul.

Oregon Legislature Considers Full Faith & Credit For Oregon Tribal Courts

By Corin La Pointe-Aitchison

The State of Oregon is set to pass historic legislation which will give tribal court orders full faith and credit in Oregon state courts.  Senate Bill 183 is the product of cooperation between the Oregon State Judiciary, tribal court judges from Oregon’s nine tribal governments, and the Oregon State Bar’s Indian Law Section.    

SB 183 has two primary functions.

The first is to give full faith and credit to judgments, decrees and orders from tribal courts. This will place tribal judiciaries on the same footing as the courts of other jurisdictions.

The second goal is to ensure proper recognition and enforcement of tribal protection orders for individuals to the extent they are outside the issuing tribe’s jurisdiction. 

Section 1 of SB 183 utilizes the framework of Oregon’s existing full faith and credit statute, ORS Chapter 24, by amending ORS 24.105 to include recognition of tribal judgments, decrees, and orders. The intent is to afford this recognition in the same manner that full faith and credit is afforded to federal and other state courts.

Sections 2 through 4 of SB 183 provide a new framework for enforcing tribal restraining orders in state courts. These sections would bring Oregon law in line with federal law and resolve a conflict between state and federal law that now exists. Under 18 U.S.C. § 2265, Oregon must already give full faith and credit to protection orders issued by any other state, Indian tribe, or territory. SB 183 aligns ORS 24.190 with that federal requirement. 

The bill is set for vote in the coming weeks and currently has no opposition in the Oregon State Legislature. 

Corin La Pointe-Aitchison is an Associate in Galanda Broadman’s Seattle office and the current Co-Chair of the Oregon State Bar Association Indian Law Section.. His practice focuses on litigation involving tribal governments and enterprises, and Indian civil rights. Corin is a Koyukon Athabaskan descendant whose family hails from Nulato, Alaska.

Gabe Galanda to Reprise Harvard Tribal Citizenship Lecture for Yale, Cornell Law Schools

In January Gabe Galanda delivered a lecture at Harvard University’s Kennedy School titled, “Issues in Tribal Citizenship: Who's the 'Self' in Self-Governance?" Gabe will reprise that lecture on March 16 for the Saginaw Chippewa Disenrollment Clinic jointly run by Yale Law School and Cornell Law School.

Gabe addressed how the transmutation of Indigenous kinship societies and members into “nations” and “citizens,” as matters of federal law and policy since the late eighteenth century, contributes to Indigenous citizenship and identity crises for a great many Indigenous nations today. . . .

Gabe urged that traditional Indigenous kinship principles be infused into modern Indigenous nationhood citizenship laws and practices, including constitutions and membership ordinances.

Gabriel S. Galanda is the Managing Lawyer of Galanda Broadman, PLLC, an Indigenous rights law firm. He belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.

Is Legal Academia Breaking its Silence Regarding Indigenous Human Rights Abuse?

For the better part of the last quarter century, legal academia has sat silent in the face of obscene Indigenous human rights abuse in Indian Country, specifically disenrollment. Why? Because a great many Indigenous legal programs depend on gaming money, if not disenrollment chiefs’ blood money.

But there are signs that the taboo is breaking.

Certain Indigenous legal programs have shattered their institution’s silence regarding domestic Indigenous human rights abuse and citizenship deprivation.

In 2017, the University of Arizona College of Law’s Indigenous Peoples Law and Policy Program (IPLP) shattered barriers when it hosted the “Who Belongs?” conference. For its part, the Michigan State University College of Law does not shy away from publicizing disenrollment controversies and thereby shaming disenrollment chiefs and domestic Indigenous human rights abusers. Better yet, the Yale and Cornell Law Schools now co-convene the Saginaw-Chippewa Disenrollment Clinic.

More work, however, must be done to eradicate the taboo. Last fall, when assembling a coalition of supporters for NCAI’s Tribal Citizenship Protection Task Force Resolution, I was surprised that more Indigenous legal programs did not join the effort. UC Boulder's First Peoples Worldwide and Arizona’s IPLP were the only two programs that signed on (although several professors did individually). The bottom line is Indian gaming still has a powerful grip on the Indigenous legal education establishment.

So while there is reason for hope, there is still more reason to break the silence.

Gabriel S. Galanda is the Managing Lawyer of Galanda Broadman, PLLC, an Indigenous rights law firm. He belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.

Another Qualified Immunity Travesty

By Ryan Dreveskracht and Emmerson Donnell

On May 11, 2016, Andre Gerard, a pre-trial detainee in New York, refused to shave his beard for a police lineup for religious reasons. In response, NYPD Detective Michael Bia took out his gun and threatened to shoot Gerard if he did not comply.  This was an overt use of excessive force.  Yet, according to a ruling issued this month from the U.S. Court of Appeals for the Second Circuit:

Drawing all inferences in favor of Gerard and assuming, for purposes of this appeal only, that Detective Bia brandished his gun and threatened to shoot Gerard when he volubly refused to [shave his beard], Detective Bia was entitled to qualified immunity.

The court accepted that Gerard's constitutional rights were almost certainly violated, yet refused to act.

This case is the latest travesty of justice resulting from the judge-made “qualified immunity” doctrine. Every day citizens’ constitutional rights are violated, and these constitutional violations go unpunished because of qualified immunity.  With each dismissed cased, the sanctity of our Nation’s constitutional rights and the public’s perception of a fair justice system continue to erode.  With each dismissed cased, law enforcement remain undeterred from violating the next person’s civil rights—or killing them.

Without swift reform, more citizens will be subject to unchecked violence, terror, and death at the hands of those trusted to serve and protect.  A disproportionate number of these affected citizens are BIPOC. Qualified immunity needs reform now. Our constitution is at risk. Lives are at stake.

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle. His practice includes civil rights and wrongful death litigation. Emmerson Donnell is a senior at Oregon State University-Cascades, who has an interest in criminal justice reform.

Grey Area: Pretendians, Disenrollment & Indigeneity

As the Pretendianism movement rages on in 2021, a published comment from Kwantlen First Nation citizen Robert Jago caught my eye:

From the existence of these identity controversies, it might seem like the question of who is Indigenous is complex, hazy and impossible to understand.

However, Indigenous identity is no more confusing than getting a health card or a driver’s license. Each of the more than 600 recognized Indigenous governments in Canada have their own rules to determine who is a member. Most of them are codified, and some are even searchable online. Among real Indigenous people, there isn’t any grey area: it is clear who is Indigenous and who is not.

All the ambiguity on this issue comes from the Pretendians . . .

The 574 Indigenous nations in the U.S. also have their own citizenship rules.  Many issue citizenship cards, as suggested by Mr. Jago in his reference to health cards or driver’s licensure.

I do not know much about First Nations identity but I do know that assertions that Indigenous identity is “clear” and so-called Pretendians cause “all the ambiguity,” don’t translate in the United States.

In the U.S., Indigeneity is indeed complex and hazy; it is a grey area. 

That is because a great many Indigenous individuals who belong to their societies or nations are excluded by greed-addled, power-mongering tribal politicians.  Indigenous individuals are deprived of their Indigenous birthright. They are denied tribal citizenship. They do not get citizenship cards.

The ambiguity on this issue derives in great part from tribal politicians.

Tribal politicians for many tribes have imposed enrollment moratoria, most often to preserve gaming per capita wealth for existing tribal members, who in turn entrench as part of the politicians’ base and vote to keep them in office in perpetuity.  Those tribes no longer enroll their babies or children.

Tribal politicians for nearly 90 tribes have disenrolled their relatives, most often to also preserve gaming per capita wealth for existing tribal members, who again help keep the politicians in office.  The Eastern Band of Cherokee Indians are a prime example of disenrollment for gaming profit.

Tribal politicians for other tribes simply refuse to enroll their relatives due to racism or fascism.  For example, the Muscogee Creek Nation refuses to enroll their Black Freedmen relatives, in violation of MCN’s own 1866 Treaty with the United States and in derogation of basic human rights.

Tribal politicians engaged in such neo-colonialism have made Indigeneity hazy in the U.S. They have made tribal citizenship a grey area.  They are the pretenders.

Tribal citizenship could be clear, as with natural born American citizenship.  If you are born in the U.S., you belong here as an American. If you are born to a U.S. citizen, you belong here as an American. The Fourteenth Amendment and the United States Code quite clearly guarantee one’s birthright to belong.

But tribal citizenship is not clear. The fact of the matter is there are a great many Indigenous persons who belong, yet do not have a tribal citizenship card or are not tribally enrolled for inhumane and illegal reasons. There are few if any tribal laws that operate like the Fourteenth Amendment.

So if we are going to debate Indigeneity or cancel Pretendians, let’s also call out tribal politicians who deny their peoples’ birthright for power and profit.  That, however, requires courage that a great many of us lack. Because we fear our own persecution and disenrollment—or becoming the next “Pretendian.”

Gabriel S. Galanda is the Managing Lawyer of Galanda Broadman, PLLC, an Indigenous rights law firm. He belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.

Gabe Galanda Teaches Indigenous Rights to Washington State Legislature

Today Gabe Galanda delivered a presentation to the Washington State Legislature titled, “Indian Law for the Washington State Legislator.” His remarks can now be seen on TVW.

At the invitation of House State Government & Tribal Relations Committee, Gabe educated the Legislators on Indigenous kinship, Treaty and territorial rights, consultation and consent.

Gabe’s slides are available here.

Gabriel S. Galanda is the Managing Lawyer of Galanda Broadman, PLLC, an Indigenous rights law firm. He belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.

Book Review: Disenrollment Murder at Cedarville

“Mass Murder in California’s Empty Quarter – Tribal Treachery at the Cedarville Rancheria” by investigative journalist Ray A. March is a true-to-life account that at times echoes Tommy Orange’s fictional “There, There.”

The central characters in each story are displaced Indigenous persons who history has foisted into the streets of Oakland and Sacramento. Neither the fictional nor the real life characters deeply understand their cultures. As they grapple with the critical question “Who is an Indian?” and fear that they do not measure up, they fall into a deep confusion and dysfunction that irretrievably leads to chaos and murder.  

“Mass Murder in California's Empty Quarter” comes at a time when a growing number of tribal citizens are victim of mass disenrollment—a greed-addled political practice that strips them of their Indigenous birthright. At the time of the Cedarville mass murder the disenrollment epidemic was rampant, with related violence on the rise.  Family feuds over tribal political control, particularly of newfound gaming wealth, turned brutal, and subverted what is really means to be Indigenous.

March chronicles the intersection of murder and disenrollment in telling the horrific story of how, in 2014, a former Cedarville Rancheria chairwoman executed her brother, nephew, niece and the tribe’s administrator in plain sight, before they could evict her, deprive her of $80,000 in annual gaming per capita monies, and in effect disenroll her.

March’s book sounds as a much-needed wakeup call for anybody concerned about the state and future of Indigenous peoples in America.

Gabriel S. Galanda is the Managing Lawyer of Galanda Broadman, PLLC, an Indigenous rights law firm. He belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.