Seattle Indian Lawyer Amber Penn-Roco Featured By Indian Country Today

New Galanda Broadman Associate Amber Penn-Roco is featured by Indian Country Today in an article titled, "Galanda Broadman Add to Indian Lawyer Bench With Addition of Penn-Roco."

The bright young mind of Amber Penn-Roco, an enrolled member of the Chehalis Tribe, has joined the team of Galanda Broadman.

The Indian lawyer deepens the already strong bench at the Washington state-based law firm, and comes from K+L Gates, Seattle’s second largest law firm, where she was an associate for three years.

“Amber is one of the best and brightest young Indian lawyers around,” Gabe Galanda, the firm’s managing partner said. “As our tribal law firm continues to grow, we remain very grateful to our tribal clients for the trust they put in us and the opportunity to fight for Indian country.”

Amber’s practice focuses on complex land and environmental issues and multi-party litigation involving tribal sovereignty, torts and hazardous materials. Her experience also includes work on transactional matters, including entity formation, environmental compliance and permitting. Amber’s work includes facilitating business developments in Indian Country.

ATF Withdraws PACT Act FAQs; Downgrades Tobacco Investigations?

As reported this week in the Times Argus, the ATF has withdrawn a controversial set of Frequently Asked Questions (FAQ), which states were using to regulate and tax--and essentially vitiate--inter-tribal tobacco commerce. While some speculate that ATF has in very recent times diverted federal attention away from tobacco-diversion investigations, Indian Country should remain vigilant in defense of state PACT Act, CCTA and other tobacco tax enforcement efforts.

According to the Times Argus:

ATF took down a frequently-asked-questions Web site posting attached to its explanation of the PACT Act. The FAQ stated that the law clearly applied to wholesalers and distributors on Indian reservations.

“We are concerned that the removal of the FAQs may evidence a determination by ATF to narrow its current interpretation of the PACT Act to exclude various tribal cigarette sales and shipments,” [Idaho AG Lawrence] Wasden wrote in the Feb. 21 letter to Holder. . . .

ATF took the FAQs down after meeting with tribal representatives because the answers were three years old and “it was time to review (them) based upon the passage of time and the experience gained in enforcing the PACT Act,” [ATF spokeswoman Ginger] Colbrun said in an email statement. “We’ve committed to reviewing the FAQs, but not to making any specific changes unless we conclude they are warranted by the law.” . . .

In recent years, ATF has backed off enforcement of laws governing “tobacco diversion” — underground smuggling of cigarettes from Indian reservations to urban markets or from low-tax states in the South to high-tax states like New York and Connecticut.

Last year, the Albany Times Union obtained an ATF memo that directed agents to downgrade tobacco-diversion investigations unless there is a “nexus” to violent crime.

Indian Country had openly questioned the ATF's written position regarding state enforcement of the PACT Act per the withdrawn or "taken down" FAQs, specifically:

1. The scope of “lawfully operating” as that term is used in 15 U.S.C. § 375(4)((B);
2. The scope of “Delivery sales” in regard to wholesale shipments made to reservation retailers intended for resale in a “face to face” transaction;
3. The PACT Act “list;” and
4. The PACT Act definition of “interstate commerce” and its relationship with commerce occurring between different Indian reservations.

Of particular concern was Issue No. 1, as ATF took the position in the FAQs that to be “lawfully operating,” a business must possess all state licenses regardless of whether that business is operating in Indian Country. The ATF's position, which represented a wholesale incorporation of state law into Indian Country, is specifically prohibited by the plain language of Section 5 of the PACT Act.

Still, Indian Country should not let its guard down against the states for an upstate New York minute.

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 206.691.3631 or gabe@galandabroadman.com.

State of Flux: Washington Supreme Court and Indian Rights

Washington Supreme Court Justice and longtime Indian fighter James M. Johnson announced his retirement from the high court last week.  For Indian law court watchers, Justice Johnson’s departure adds more excitement to an already dynamic time for the Court in terms of Indian jurisprudence. The recent voting record of the still-seated Washington State Supreme Court Justices in Indian cases, reveals some patterns for the justices:

Case	Pro-Tribal Interests	Anti-Tribal Interests
Wright (tribal corporate sovereign immunity)	Madsen, Owens, Fairhurst	C. Johnson, J. Johnson
Eriksen (tribal detention of traffic offender in fresh pursuit, off reservation)	Owens, C. Johnson	Stephens, Wiggins, Fairhurst, Madsen, J. Johnson
Jim (tribal jurisdiction over Treaty in lieu sites)	Owens, C. Johnson, Fairhurst, Stephens	J. Johnson, Madsen, Wiggins
AUTO (tribal indispensability to third-party fuel compact challenges)	Madsen, Owens, Fairhurst, González	C. Johnson, J. Johnson, Stephens, Wiggins
Clark (state search warrant execution in Washington Indian Country)		Unanimous (Fairhurst Opinion)

  Wright, AUTO and Jim best illustrate the very narrow split on the court when it comes to tribal sovereignty rights, with the Court’s most firmly conservative and anti-tribal (or as my colleague writes, “regressive”) position, prevailing in three out of the last four Indian cases.

While cases are not decided based on whether there is a tribal litigant on one side, appellate court judges do seem to develop voting patterns where Tribes are involved.  As you can see, Justice James Johnson has not surprisingly consistently ruled against tribal interests. Justice Wiggins seems squarely anti-tribal too.

Whoever Governor Inslee appoints to replace Justice James Johnson in May, who would then be up for election in November, stands to flip or maintain the Court’s recent anti-tribal position. In addition, Justices Charles Johnson, Fairhurst, and Stephens are up for reelection this year.

Justice Fairhurst has generally sided with pro-tribal majorities with the exception of criminal jurisdiction cases.  Her predisposition against tribal criminal authority was perhaps most clear during oral argument in Clark, when she expressed concerns in connection with Indian Country could serve as“an asylum for fugitives from justice.”  That is consistent with her positions in the Eriksen saga, which seem based mostly on a nuanced read of criminal procedure.

Justice Fairhurst’s reasoned dissent in AUTO was correct in observing, “[u]nder a proper CR 19(b) analysis, the Indian tribes are indispensable parties and they will be severely prejudiced by a state court judgment rendered in their absence. Because the majority incorrectly holds that the tribes are not indispensable parties, it seriously undermines the doctrine of sovereign immunity and weakens the law.”  So whatever opposition to tribal interests Justice Fairhurst showed in Clark and Eriksen are tempered by her dissent in AUTO.

Justice Stephens sided with the anti-tribal bloc in Eriksen and AUTO, which she authored.  As a former plaintiffs lawyer, her decision in AUTO appears to stem from an interest in advancing litigants’ right to sue.  She did after all side with tribal interests in Jim, which recognized tribal jurisdiction over tribal treaty fishing sites.

Justice Charles Johnson has twice voted pro-tribal, in Eriksen and Jim. He came down against tribal interests when he dissented in Wright – sort of.  While it may have been concerning at the time, he simply found to many factual discrepancies to hold that the tribal corporations at issue constituted “tribal entities.”

All of this recent Indian history in Washington’s high court goes to show that the four seats in play this year, most notably Justice James Johnson’s, are crucial to the protection of tribal sovereignty interests in Washington State.

Next Justice Elections

2014 Charles W. Johnson, Justice

2014 Mary E. Fairhurst, Justice

2014* James M. Johnson, Justice (position through 2016)

2014 Debra L. Stephens, Justice

2016 Barbara A. Madsen, Chief Justice

2016 Charles K. Wiggins, Justice

2018 Susan Owens, Justice                      

2018 Steven C. González, Justice

2018 Sheryl Gordon McCloud, Justice

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.

Finishing What Slade Gorton Started: A Practical Argument Against Disenrollment

For an Indian law attorney, few insults cut as deeply as a comparison to former Senator Slade Gorton. For decades the Washington State Republican lawmaker attacked Tribal sovereignty, at one point introducing legislation that would authorize civil actions against tribes in Federal and state courts.  

So when such a comparison was recently made — i.e. that anti-disenrollment litigation essentially picks up where Gorton left off — I was impressed by its naiveté. The opposite is true. By proceeding recklessly with mass disenrollments and standing behind sovereign immunity even as to their own citizens, a handful of tribal governments are threatening the very existence of tribal sovereignty.

It is Tribes engaged in mass disenrollment efforts that threaten to complete Gorton’s work. What Gorton failed to achieve in Congress, membership-eliminating Tribes will achieve on the ground in Indian Country. Tribes will not be able to halve and quarter their memberships and maintain their position in the federalist structure. Tribes will not be able to violate their members’ human rights while Congress, in particular, sits idly by. They will create too many enemies. Critical race theorists posit that 19th Century federal policies of termination dovetail with the Tribal self-termination of the 21st Century. The argument might go that blood quantum in particular and membership ordinances in general will inherently destroy tribes — that the federal government will achieve through inter-marriage and tribal self-governance in enrollment practices what it couldn’t accomplish through Termination and the Dawes Act. Those arguments are as accurate as anything else in the sordid context of political disenrollment — TV shows included.

But practically, if we believe that disenrollment will be the camel’s nose under the tent for tribal sovereignty, the prudent approach is to make a kind of Pascal’s wager, and take the safe road. Through court battles, anti-disenrollment and human-rights activists will attack sovereign immunity. Tribal people will not lie down and let their governments tell them they are not Indian.

And while battles wage in court, enemies of tribes in federal and state office will use the chaos to attack tribal interests. Consider that often tribes use membership numbers to justify jurisdictional power or federal entitlements. If those numbers were fraudulent, don’t expect cash-strapped non-tribal governments to turn their cheeks. The incremental cost of not terminating members is insignificant compared with the abrogation of sovereign immunity or sovereignty that disenrollment will cause. So not only is there a theoretical basis for fighting disenrollment, but rationality requires us to wager that Tribes are stronger when they are either inclusive or static. A tribal government bets its very existence by disenrolling those who belong, or at least belonged under a previous administration. And because there are so many easy ways to avoid disenrollment — constitutional super-majority requirements as at Graton; statutes of limitation on disenrollment actions; moratoriums on enrollment; adoptions — it’s not a bet any government should make.

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.

Joe Sexton Featured as Attorney "Super-Commuter" in NWLawyer Magazine

Joe Sexton, Of Counsel at Galanda Broadman, is featured in this month’s edition of NWLawyer magazine as an attorney "super commuter."

Joe considered two factors as central to his decision to super-commute: time with his family and acquisition of his dream job. "I just had my first child," said Joe, "and my working from home provides flexibility in helping my wife care for our newborn." The arrangement also enables him to work for Seattle-based firm Galanda Broadman, which he describes as "one of the leading Indian law firms." . . .

Joe's firm is pretty high-tech. The five attorneys maintain near-constant contact via video chat and instant message. They also text and email. "Actually, I'm more in contact with my colleagues than I've ever been before in my career," Joe observed. Joe has found that working remotely has actually strengthened his personal relationships. He reflected that most attorneys have put effort into maintaining a balance between their work and personal lives. "It's a constant work in progress," he observed, but "I think my love for what I do and for the clients I serve also helps me feel balanced and fulfilled in my personal relationships."

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.

Gabe Galanda Signs On to Supreme Court Brief Re: Native Prisoners’ Religious Rights

Gabe Galanda, Chairman of the Huy Board of Advisors, signed on to a U.S. Supreme Court amicus brief along with counsel for the Native American Rights Fund (NARF) and National Congress of American Indians (NCAI).

The brief urges the High Court to accept review of the Knight v. Thompson case, which involves an Alabama prison grooming policy that restricts Native inmates from wearing unshorn hair in accordance with tribal religion, as a companion case to Holt v. Hobbs, a similar case that the Court recently accepted for review.

Hobbs involves an Arkansas prison grooming policy that prohibits an inmate from growing a one-half-inch beard consistent with his religion.

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 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda to Lecture on Tribal Disenrollment Law at Berkeley

On Monday, March 17, Gabe Galanda will lecture at UC Berkeley regarding the legalities associated with tribal disenrollment controversies. His remarks will be for the “Native American Critical and Legal Policy” seminar taught by Ethnic Studies professor, Thomas Biolsi. Gabe will speak from two essays recently published by his law firm: “An Essay on the Federal Origins of Disenrollment” and “An Essay on the Modern Dynamics of Tribal Disenrollment.” Professor Biolsi has included Roberts v. Kelly, a disenrollment controversy involving the Nooksack 306 that is currently pending before the Nooksack Judiciary, in his course syllabus. 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 206.691.3631 or gabe@galandabroadman.com.

An Essay on the Modern Dynamics of Tribal Disenrollment

Disenrollment is predominately about race, and money, and an "individualistic, materialistic attitude" that is not indigenous to tribal communities.

Because many tribes have maintained the IRA’s paternalistic and antiquated definition of “Indian” vis-a-vis blood quantum (as discussed in "An Essay on the Federal Origins of Disenrollment"), tribal membership has largely become “an explicitly racial conception of Indian identity.” Suzianne D. Painter-Thorne, If You Build It, They Will Come: Preserving Tribal Sovereignty in the Face of Indian Casinos and the New Premium on Tribal Membership, 14 Lewis & Clark L. Rev. 311 (2010).

The racial construct has worked well for disenrollment as "American Indians have one of the highest rates of interracial marriage in the U.S."  Gosia Wozniacka, Disenrollment leaves Native feeling 'culturally homeless', Associated Press, Jan. 21, 2014.  Indeed, Indians of any quantum (defined as "portion") of Indian blood are by federal design, multi-racial. In addition, "many Native Americans don’t live on reservations, speak Native languages or 'look' Indian, making others question their bloodline claims." Id.  In those illustrative ways, Indian conceptions of both race and class converge, with tribal classism also catalyzing disenrollment.

In turn, tribal officials who wish to target political foes or large swaths of politically weak or unpopular members, can “voluntarily invoke race-based definitions of ‘Indian’ [to] narrow the pool of tribal members, perhaps in an effort to limit gaming revenue and federal dollars to [those targeted] tribal members.”Painter-Thorne,  supra.  These disenrollment stories bear this out.   See e.g. Liz Jones, 'We'll Always Be Nooksack':Tribe Questions Ancestry of Part-Filipino Members, NPR/KUOW, Dec. 16, 2013; Joanne Barker, The True Meaning of Sovereignty, New York Times, Sept. 16, 2011.  

The “forced transition to a cash economy” has likely played a large part in the dramatic spike in disenrollment as well.  Jana Berger & Paula Fisher, Navigating Tribal Membership Issues, Emerging Issues in Tribal-State Relations 61, 66 (2013).  Prior to the recent disenrollment epidemic, which is estimated to have already vanquished over 11,000 Indians, tribal governments were very inclusive, frequently wanting to have large "membership" numbers.  Aside from a greater amount of funding from federal agencies relative to increased tribal membership, from a practical standpoint tribal governments recognized that “there is strength in numbers.”  Id. 

But over the last couple decades, as tribes became more dependent on the U.S. economic free-market system, primarily through gaming entrepreneurship, disenrollment began to rear its ugly head.  According to Charles Wilkinson,

Just as federal education practices reverberated throughout tribes, so too did the forced transition to a cash economy. The concept of sharing, integral to Indian societies, did not jibe well with the individualistic, materialistic attitude that drove the nation’s economic system. As one Navajo stated, “When a relative needed help, you helped them out. When you needed something else, you could rely on a relative to help out, it all worked out in the long run. With money it doesn’t work anymore, now the relative with the money is expected to help out, what is needed for most everything is money and the poor relatives never have any.”

Blood Struggle: The Rise of Modern Indian Nations 54 (2006).

As Professor David Wilkins observes, tribal communities historically used ceremony and prayer to resolve intra-tribal tension or conflict; because traditionally speaking, "you don't cast out your relatives." Wozniacka, supra.  But today, when the political going gets rough in tribal communities, the individualistic, materialistic Indian attitude that Professor Wilkinson describes, increasingly leads to disenrollment of one's own relatives--instead of towards any holistic or indigenous values-based solution.

Galanda Broadman is an American Indian owned firm dedicated to advancing tribal legal rights and Indian business interests. The firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in the areas of Indian Treaty rights, tribal sovereignty, taxation, commerce, personal injury, and human/civil rights.

Indian Lawyer Amber Penn-Roco Joins Galanda Broadman

Galanda Broadman has deepened its bench by adding another Indian lawyer: Amber Penn-Roco. Amber, an enrolled member of the Chehalis Tribe, comes to the firm as an Associate after a three-year stint at K+L Gates, Seattle’s second largest law firm.

“Amber is one of the best and brightest young Indian lawyers around,” said Gabe Galanda, the firm’s managing partner.  “As our tribal law firm continues to grow, we remain very grateful to our tribal clients for the trust they put in us and the opportunity to fight for Indian Country.”

Amber’s practice focuses on complex land and environmental issues and multi-party litigation involving tribal sovereignty, torts and hazardous materials.  Her experience also includes work on transactional matters, including entity formation, environmental compliance and permitting.

Prior to working at K&L Gates, Amber worked in the Native American Unit of the Northwest Justice Project, which strives to afford access to justice to low-income tribal populations. She has served as a Governing Council Member of the Northwest Indian Bar Association.

Amber is a graduate of University of Washington School of Law, and Washington State University (summa cum laude).  While in law school, she served as President of both the Native American Law Students’ Association and the Minority Law Students’ Association.

Galanda Broadman was recently named to the 2014 Edition of U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law.  The six-lawyer firm, which styles itself  “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests.  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.

Seattle Tribal Lawyer to Again Teach Minority Lawyers How To Build a Book of Business

On March 27, Gabe Galanda will help teach the King County Bar Association's annual Building a Book of Business: For Attorneys of Color program in Seattle. He delivered the same teachings last year.

KCBA's Diversity Committee is proud to host this annual seminar designed to give recently admitted attorneys of color the skills they need to advance in their careers.unique program is a closed door session where you will learn to effectively market yourself and acquire new clients for your firm. You'll gain valuable networking contacts and receive guidance from some of the most well-respected and successful leaders in our region's minority bar community.

In 2010, Gabe co-founded Galanda Broadman, PLLC, an American Indian owned law firm with six lawyers, and offices in Seattle, Washington and Bend, Oregon. Prior to that. Gabe founded the Tribal Practice Group at Williams Kastner, where he was a "first ballot" equity partner and an elected member of the firm's Board of Directors. Gabe has been named to the prestigious "40 Under 40" listing by Puget Sound Business Journal, and the "Native American 40 Under 40" listing by the National Center for American Indian Economic Development.

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 206.691.3631 or gabe@galandabroadman.com.