Beware of the Disenrollment Playbook

Over the last decade, lawyers--predominately non-Indian lawyers--have devised a set of plays to "win" the mass disenrollment of Indian citizens.  The plays are drawn up, even scripted, behind closed tribal doors, to further advantage offending tribal leaders on what is already an uneven political and legal playing field.  If you see or hear any of these plays being called, pay close attention. Or you and yours may be the next to play defense against disenrollment.

Enrollment Audits--the beginning of a mass disenrollment effort (see "Auditing Tribal Sovereignty")

Battle of the Experts--engaging non-Indian, hired-gun genealogists or anthropologists (those who Vine Deloria, Jr., rightly called "culture vultures") to discount a family's lineage and disrespect the ancestors

No Magic Words--avoiding federal habeas corpus review under Poodry and Sweet by not saying "banished"

Provisional Disenrollment--denying equal rights to those members who are merely proposed for disenrollment, typically starting with the deprivation of gaming per capita monies (see "Tribal Per Capitas and Self-Termination")

Posthumous Disenrollment--disenrolling the dead, perhaps without notice to the living

Audibles--changing the rules of engagement as they go, to advantage those doing the disenrollment

Disenrollment Moratorium--once the politically unpopular members are disenrolled, impose a moratorium to prevent the disenrollment of those who accomplished the disenrollment

Galanda Broadman is an American Indian owned law firm dedicated to defending Indian rights.  The firm has represented nearly 500 disenrollees in disenrollment proceedings and contoversies since 2013.

Disenrollment: Severing The Seven Generations

In all of your deliberations...in your efforts at law making, in all your official acts, self-interest shall be cast into oblivion....Look and listen for the welfare of the whole people and have always in view not only the present but also the coming generations, even those whose faces are yet beneath the surface of the ground – the unborn of the future Nation. -- Great Law of the Iroqouis

While some tribes who terminate their own people, spare the ancestors by not “posthumously disenrolling” them, any disenrollment of a descendant amounts to disenrollment of the dead.

Today’s disenrollees descend from Treaty Chiefs, reservation founders, original allottees, termination defenders, and other tribal matriarchs and patriarchs.  Many of those ancestors signed a Treaty or accepted an Indian homestead, or defended those Indian holdings, to ensure that the coming “seven generations” would survive.

So when a tribe severs the ancestors’ so-called “down line” of lineal descendants,the ancestors are essentially disenrolled—or dismembered—too. The seven generations are severed.

What offending tribes fail to fully appreciate is that along with the jettisoned ancestors go the tribe’s legitimate ties to aboriginal lands, sacred sites, time-honored rites, and so much more that makes the tribe tribal.

Indeed, to disenroll is to cut off a tribe’s nose to spite its face.  It is self-dismemberment.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman, an American Indian law firm dedicated to defending Indian rights. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Disenrolling the Dead

Your dead cease to love you and the land of their nativity as soon as they pass the portals of the tomb and wander away beyond the stars. They are soon forgotten and never return. Our dead never forget this beautiful world that gave them being. They still . . . yearn in tender fond affection over the lonely hearted living, and often return from the happy hunting ground to visit, guide, console, and comfort them. -- Chief Seattle

There is perhaps nothing more reviling about disenrollment, than the disenrollment of ancestors, or what offending tribes call "posthumous disenrollment."

It has happened at Saginaw Chippewa, at Las Vegas Paiute, at Robinson Rancheria, and most recently, at Grand Ronde. And it could happen to your ancestors, and to you.

The reason the offending tribes--or more precisely, their lawyers--or even more precisely, their non-Indian lawyers--disenroll the dead is because many IRA tribal constitutions include language that says if you descend from an enrolled tribal member (and satisfy other requirements, like blood quantum), you are entitled to tribal membership too.

As such, in order to disenroll large swaths of tribal members, as is happening at now epidemic levels, an offending tribe must go back multiple generations on a family's tree, to disenroll not only the living, but the dead.

Beyond rightful moral outrage to so disturbing and dishonoring the ancestors, the maneuver raises due process questions, especially insofar as an offending tribe does not give even the ancestors' living descendants notice or opportunity to be heard.

To some tribes death is so sacred that the community can never again utter an ancestor's name; they are to be left in peace.

To other tribes, nothing is sacred.

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

Disenrollment Defense, By the Numbers

It has been 16 months since we first began to defend American Indians from disenrollment, or what Prof. David Wilkins rightly terms "dismemberment."  We have since defended nearly 500 Indians from that atrocity. We are deeply gratified to have helped spare 104 Indian lives this year--a tribal family of 28 in Oregon, and another Indian family of 76 in California.  

We are also pleased to have stayed or enjoined the disenrollment of 306 Indians in Washington State since mid-2013.

But we are deeply anguished by our failure to have thus far prevented the disenrollment of 67 Indians in Oregon. They all have appeal rights, so our fight for them is not over.  But they are "disenrolled," pending appeal.

Perhaps worst of all, the ancestors of 66 of those Oregon Indians were also disenrolled--posthumously, and without any notice to the living.

We oppose disenrollment, and we hope that the number of Indians visibly opposed to that mode of self-termination grows before it is too late.

Galanda Broadman is an American Indian owned law firm dedicated to defending Indian rights.

Beware: "Enrollment Audit" is Code for Disenrollment Witch-hunt

We are witnessing an increasing number of tribal enrollment audits. In our and our clients' experience, these "audits" are not about sorting out the truth of a tribal community's lineage.  Instead, they are a means to an end: mass disenrollment.

Perhaps more troubling than the notion of "auditing" Indian ancestry--hardly an indigenous custom or tradition--these audits are being performed by outsiders, most notably CPAs.  In other words, highly confidential tribal historical, anthropological and genealogical information is being disclosed to third-party corporate entities.  This time-honored information is boxed and shipped off of the reservation or scanned and uploaded to the cloud--nothing is sacred.

And even more troubling than that is the idea that consulting firms, even those professed to be "Native-owned," are actively marketing themselves to tribes for the opportunity to administer these witch-hunts.  One firm advertises tribal enrollment audits as a way of "managing your tribal rolls" and "re-evaluating your organizational growth strategies." Got snake oil?

In any event, if ever you hear the word "enrollment audit," put up your political dukes and fight the measure to its death.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Reframing "The Debate Over Disenrollment"

It is with great admiration for my colleague Professor Duane Champagne that I must disagree with some of the underpinnings to his recent column, “The Debate Over Disenrollment.”  Here, I hope to help reframe that “debate." Professor Champagne suggests, like legions of others, that the 1978 Santa Clara v. Martinez bestows upon tribal governments some form of absolute power to disenroll Indians.  Most notably the U.S. Department of Interior has proclaimed, time and again, that Santa Clara requires “‘a proper respect’ for tribal sovereignty” and “‘cautions’ that [the Fed] tread lightly” in the realm of disenrollment, even in the face of related federal illegality.  Reliance on Santa Clara is outdated, and frankly, unhelpful in the face of what Professor David Wilkins rightly calls a “disenrollment epidemic.”

Although Professor Champagne is correct that federal courts generally “do not have jurisdiction over tribal membership rules,” they do have jurisdiction over various Tribal disenrollment-related actions that implicate federal law and thus raise federal questions under 28 U.S.C. 1331.  For example, the trend of faction-driven Secretarial elections that further the targeted disenrollment of Indians under the guise of the federal Indian Reorganization Act, implicates the federal judiciary’s jurisdiction.  Likewise, the trend of denying proposed disenrollees tribally and federally guaranteed equal rights, such as gaming per capita distributions, implicates the federal Indian Gaming Regulatory Act.

It is only a matter of time before federal judges, in the spirit of judicial realism, begin to tackle disenrollment on the merits.  A recent Ninth Circuit Court of Appeals panel recently commented that “membership disputes have been proliferating in recent years, largely driven by the advent of Indian gaming, the revenues from which are distributed among tribal members.”  Alto v. Black (9th Cir. 2013).  Reading between the lines: the federal courts are tired of per capita-driven mass disenrollment disputes.  The United States' judges will eventually intercede to help put a stop to those disputes' proliferation, with the judges' hook being the rampant federal civil rights violations that accompany any mass Indian disenrollment.

Professor Champagne suggests that “[o]ften Indian disenrollment debates focus on specific membership rules particular to a given tribe, such as their traditional kinship system[s].”  The reality, though, is that trending mass tribal disenrollment efforts have little to do with tribal tradition-based membership requirements.  They instead involve artificial, federal membership constructs, like U.S. censuses and rolls, which can be “traced to the United States’ paternalistic assimilation policies of the 1930s.”  As Dr. Jay Miller observes, “no census was fully effective and portions of tribes were always missing both by accident and by malicious intent of U.S. or tribal officials.”

Disenrollments rooted in such non-indigenous constructs really do not “require deep understanding of tribal community, history, culture, and identity” as the professor suggests.  In fact, disenrollment typically has little to nothing to do with such Indian ideals.  Disenrollment is “predominately about race, and money.”  Even if a particular disenrollment dispute is not driven by those non-indigenous values—I do not know of one mass disenrollment that is not—“non-Indians may view such controversies as indicators of greed and corruption.”  And of course perception is reality, especially for Indians.

Indeed, Professor Champagne’s main argument seems to be that “the whole of Indian tribal membership issues should not be brought into question because of the perceived actions of some.”  Yet as Jared Miller correctly observes, “tribal governments abandoning members en masse . . . harm their own bottom line by engendering negative media and investor perceptions. More critically, they threaten the bottom line of Indian businesses everywhere.”  Those tribes also threaten tribal self-governance, giving Indian sovereignty skeptics good reason to believe that tribal governments cannot properly handle membership without outside involvement.

In other words, the disenrollment actions of some nations do affect all tribal nations.  Among much other negativity, “there is a real risk that Congress or the U.S. Supreme Court might one day make new law in the area of tribal citizenship”—a risk that we can ill afford to take.  As such, Native America should make the whole of Indian tribal membership issues our collective business. “Too much is at stake to remain silent.”

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda Honored by WSBA for Excellence in Diversity

Gabe Galanda has been honored with the Excellence in Diversity Award by the Washington State Bar Association. He will be given the award at the WSBA's annual awards dinner in downtown Seattle on September 18, 2014.

Gabe is an enrolled member of the Round Valley Indian Tribes of California. He currently sits on the National Native American Bar Association Board of Directors, and is a past President of the Northwest Indian Bar Association and past Chair of the Washington State Bar Association Indian Law Section.  

He is being primarily honored for his work associated with Huy, a non-profit that provides economic, educational, rehabilitative and religious support for American Indian, Alaska Native, Native Hawaiian and other indigenous prisoners in the Pacific Northwest and throughout the United States.

In 2012, Gabe founded Huy--pronounced "Hoyt" in the Coast Salish Indian Lushootseed language, to mean "see you again/we never say goodbye."  He serves as the Chairman of Huy's Board of Advisors, and runs the non-profit through his law office.

Huy's most notable recent activities include two amicus curiae efforts before the U.S. Supreme Court, and advocacy before the United Nations and its Human Rights Committee, on behalf of American indigenous prisoners vis-a-vis their fundamental human rights to engage in traditional tribal religious worship.

Gabe is the Managing Partner of Galanda Broadman, PLLC, an American Indian-owned law firm dedicated to advancing and defending Indian rights.  The firm has offices in Seattle, Washington and Bend, Oregon.

Nike, N7 Should Get Off the Sidelines re Redskins Mascot

Nike and its N7 Fund have done some amazing things for Native America.  Yet the biggest sports brand on the planet stands on the sidelines of the "Change the Mascot" movement. It is understandable why some of America's biggest companies--Coca Cola and FedEx to name just two --are sitting out the Redskins mascot controversy. Money.  Big Money.

But unlike those other Fortune 50 companies, Nike has specifically stated a "commitment to bring sport and all of its benefits to Native American and Aboriginal communities in the United States and Canada."  

Of course with that commitment comes business opportunity for Nike, and not merely through the N7 shoes and apparel line.  The much more lucrative play comes through the intangible economic benefits that adorn any well-advertised philanthropic venture like the N7 Fund.

It is rather hypocritical for Nike to "help Native American and Aboriginal youth recognize their proud history," yet sell sports merchandise bearing a logo historically associated with bloody Native American scalps when "in-depth studies that show the harm negative stereotypes and 'Indian' sports mascots have on Native youth."

Nike has thus far largely (but not entirely) ducked the Indian mascot controversy.  That is in part because although national tribal leaders have lambasted the likes of FedEx for not denouncing the Redskins mascot, they have looked past Nike and N7.  Native America has allowed the the world's #1 athletic apparel company to ignore its own social responsibility to denounce racism in professional sports--especially in the form of branded pro sports apparel.

Indeed, without the prominence of Nike and its ever-lasting Swoosh the Redskins mascot might just fade away.

And beyond a Nike pronouncement against the racist Redskins mascot being the proverbial "right thing to do," as sports marketing professionals point out, a new Washington NFL team logo "would be a boon for the National Football League and licensees such as Nike Inc., if previous pro-sports team switches are any indication."

It is time for Nike to walk the walk.  They certainly have the shoes in which to do so.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda Publishes Re: Local/Global Native Prisoners' Religious Rights Movement

Gabriel Galanda published “To Geneva With Love: Native Prisoners’ Religious Rights Movement Goes Global.” The article appears in the May edition of King County’s Bar Bulletin, which is themed “Curtain.” The article begins with a citation to a famous U.S. Supreme Court prisoners’ rights case:

There is no iron curtain drawn be- tween the Constitution and the prisons of this country.” Nor is there an iron curtain drawn between international human rights norms and American prisons, especially insofar as Native American prisoners — or internationally speaking, American indigenous prisoners — are concerned.

Gabe goes on to explain how a local, grassroots, Native prisoners’ religious rights advocacy movement has ascended to national and international heights. He details various local, national and international legal and political interventions by the Native prisoners’ rights non-profit, Huy, and its allies, focusing on its advocacy via the United Nations:

By 2013, Huy aligned with longtime Native religious rights warriors, the Native American Rights Fund in Denver and the American Civil Liberties Union’s national and local chapters, to grieve the religious plight of Native inmates in state prisons throughout the United States to even higher powers. That coalition filed letters of allegation with the United Nations Office of the High Commissioner for Human Rights’ Special Rapporteur on the Rights of Indigenous Peoples, as well as the U.N. Human Rights Committee . . .

In June 2013, the Special Rapporteur on the Rights of Indigenous Peoples, joined by the U.N. Special Rapporteur on Freedom of Religion or Belief, wrote the U.S. State Department, requesting that within 60 days the government respond to the Huy coalition’s allegations and “provide any additional information it deems relevant to the situation.” The special rapporteurs posed a series of questions, including:

What measures exist to ensure the protection of the religious freedoms of Native American prisoners in state and local prisons? Specifically, what legal, policy or programmatic actions, if any, have federal and state Government authorities taken to ensure that Native American prisoners are able to engage in religious ceremonies and traditional practices as well as have access to religious items in state and local prisons?

Almost a year later, the State Department has yet to respond in any way to the U.N. special rapporteurs.

The United States’ continued silence is indicative of its and other nations’ failure to respect the right of American indigenous prisoners to freely exercise their religion, and to afford those prisoners with effective remedies when state correctional agencies and officers violate their rights.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California, and the founder of Huy (www.huycares.org) and Chairman of the Huy Board of Advisors. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Disenrollment: A Tale of Two Tribes

  Two neighboring California tribes are going about disenrollment in two completely different ways:

This week the Dry Creek Rancheria Band of Pomo Indians is becoming the latest tribe to terminate its own people.  For 70 Pomo Indians, it is not a question of whether they'll be disenrolled, but how quickly.

Meanwhile, just down the road, the Graton Rancheria has "buck[ed] the trend" of mass disenrollment by imposing constitutional limitations on the tribal government's ability to jettison its citizens.  (Graton Chairman Greg Sarris recently went on record before a group of California Indian leaders, denouncing tribal disenrollment, and becoming the first tribal leader to do so nationally.)

Tragically, Dry Creek's disenrollment efforts are related to Graton's very recent economic success:

Coming at a time when the tribe's River Rock Casino is suffering the bruising effects of competition from the newly opened Graton Resort and Casino in Rohnert Park, some suspect it's another way to trim expenses by reducing the number of Dry Creek tribal members who get a monthly “per capita” distribution of casino profits.

Indeed, the tragic trend of mass tribal disenrollment is very much about "money, and an 'individualistic, materialistic attitude' that is not indigenous to tribal communities."

I predict that for these two California tribes, history will tell:  "It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair."

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.