Will the U.S. Supreme Court Soon Reconsider Qualified Immunity For Cops?

By Ryan D. Dreveskracht

On Tuesday, the U.S. Supreme Court distributed thirteen different qualified immunity Petitions for Certiorari for its May 15, 2020, conference. This is no coincidence—it means that by the morning of Monday, May 18th, we will know whether the High Court is willing to revisit the doctrine.  As described below, this is important and necessary. 

The Civil Rights Act, 42 U.S.C. § 1983, makes liable state actors who violate constitutional or other legal rights.  It was first enacted during Reconstruction as a section of the 1871 Ku Klux Act, part of a suite of “Enforcement Acts” designed to help combat lawlessness and civil rights violations in the southern states.  Today, the law is most commonly evoked to seek redress against police officers who use excessive force to injure or even murder people. 

There is no reference to immunity of any type in the text of the statute.  But in 1967 the Supreme Court issued an opinion in Pierson v. Ray, 386 U.S. 547 (1967), that changed the landscape.  The Pierson plaintiffs were black clergymen who attempted to use segregated facilities at a bus terminal in Jackson, Mississippi.  They were arrested and charged with violating a Mississippi law that prohibited the gathering of people in a public place “under circumstances such that a breach of the peace may be occasioned thereby.”  After the charges were eventually dropped, the clergymen sued the officers in federal court for violations of the Civil Rights Act.  

The Court ruled that the police should not be held liable for the unconstitutional arrests because in a common-law suit for false arrest, “a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved,” and that could arguably be extended to “excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional.”  The newer constitutional tort, the Court held, should be read the same way: 

[Section] 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause. We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under [Section] 1983.

 On its face, one might have expected this reasoning to be limited to false arrests or other torts with similar elements, but the Court rapidly expanded it to executive action generally in subsequent cases.  One might also have expected this reasoning to support a subjective defense of good faith, but the Court has since transformed it into an objective analysis of “the objective reasonableness of an official’s conduct, as measured by reference to clearly established law.”  Malley v. Briggs, 475 U.S. 335, 342 (1986).

Today, qualified immunity today is much broader than the “good-faith” defense that it was founded on.  Unless the injured person—that’s right, the burden has shifted to the plaintiff; it’s no longer a defense—makes a two-part showing, qualified immunity shields government officials from liability.  The plaintiff must show both: The official(s) violated a federal statutory or constitutional right, and—at the time of the alleged act or failure to act there was clearly established law that defined the contours of the federal right objectively putting the official(s) on notice – i.e., every reasonable official would understand that what they are doing is unlawful.  What is more, after the Court’s opinion in Anderson v. Creighton, 483 U.S. 635 (1987), plaintiffs are forced to make this showing before the facts of the incident have even been ironed out:

Noting that no discovery has yet taken place, the [plaintiffs] renew their argument that, whatever the appropriate qualified immunity standard, some discovery would be required before [the] summary judgment motion could be granted. We think the matter somewhat more complicated. One of the purposes of the . . . qualified immunity standard is to protect public officials from the broad-ranging discovery that can be peculiarly disruptive of effective government.  For this reason, . . . qualified immunity questions should be resolved at the earliest possible stage of a litigation.

In 2001, the Supreme Court threw civil rights plaintiffs a bone in holding that lower courts ruling on qualified-immunity cases were required to decide both prongs of the qualified-immunity inquiry.  In Saucier v. Katz, 533 U.S. 194 (2001) the Court ruled: “A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? . . . [I]f a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.”  In other words, cases would not get thrown out simply by determining that the right was not “clearly established”—courts could at least make new law that would “clearly establish” what conduct would be unconstitutional in future cases. 

But in 2009, in Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court overturned Saucier’s rule of mandatory sequencing, after just eight years of its application in qualified immunity cases.  The Pearson Court held, instead, that in deciding qualified-immunity cases courts now need only to decide the clearly established prong of the qualified-immunity two-part inquiry.  Thus, under Pearson, if a court finds that the law was not clearly established at the time of the official’s conduct, the court has discretion whether or not to decide the underlying merits of the plaintiff’s claim.

Moving the ball yet again, just two years ago, in Kisela v. Hughes, 138 S. Ct. 1148 (2018), the Supreme Court held that the existing precedent must “squarely govern[] the specific facts at issue” and that courts should “not to define ‘clearly established’ law at a high level of generality.”  In other words, the plaintiff must point to a case with almost exact facts ruling that the officer’s conduct violated his or her constitutional rights—even though under Pearson, courts are no longer required to make that inquiry.  According to the Court, granularly exact facts are necessary to “provide an officer notice that a specific use of force is unlawful.”

This has created an impossible regime where the success of an injured party’s civil rights case is left to the whims of the judge assigned.  The High Court might determine that the plaintiff’s rights were violated, and at least create some new law, or it might not.  The Court might demand exact specificity of facts to determine that a law is “clearly established,” or it might not.  As Judge James Browning, U.S. District Court Judge for the District of New Mexico, wrote in a footnote just last week, this is a responsibility that trial courts do not want and should not have: 

The Supreme Court has signaled to the lower courts that a factually identical or a highly similar factual case is required for the law to be clearly established.  Factually identical or highly similar factual cases are not, however, the way the real world works.  Cases differ.  Many cases have so many facts that are unlikely to ever occur again in a significantly similar way. The Supreme Court’s view of the clearly established prong assumes that officers are well-versed in Supreme Court and Tenth Circuit opinions.  It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions.  It is far more likely that, in their training and continuing education, police officers are taught general principles, and, in the intense atmosphere of an arrest, police officers rely on these general principles, rather than engaging in a detailed comparison of their situation with a previous Supreme Court or published Tenth Circuit case.  It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?”  

Thus, when the Supreme Court grounds its clearly established jurisprudence in the language of what a reasonable officer or a “reasonable official” would know, yet still requires a highly factually analogous case, it has either lost sight of reasonable officer’s experience or it is using that language to mask an intent to create an absolute shield for law enforcement officers.  The Court concludes that the Supreme Court is doing the latter, crafting its recent qualified immunity jurisprudence to effectively eliminate § 1983 claims against state actors in their individual capacities by requiring an indistinguishable case and by encouraging courts to go straight to the clearly established prong.

The Court disagrees with the Supreme Court’s approach. The most conservative, principled decision is to minimize the expansion of the judicially created clearly established prong, so that it does not eclipse the congressionally enacted § 1983 remedy. . . . [Q]ualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.  The text of 42 U.S.C. § 1983 . . . makes no mention of immunity, and the common law of 1871 did not include any across-the-board defense for all public officials.  With limited exceptions, the baseline assumption at the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct.  Judges and scholars alike have thus increasingly arrived at the conclusion that the contemporary doctrine of qualified immunity is unmoored from any lawful justification. . . . The judiciary should be true to § 1983 as Congress wrote it.

Moreover, there should be a remedy when there is a constitutional violation, and jury trials are the most democratic expression of what police action is reasonable and what action is excessive.  If the citizens of New Mexico decide that state actors used excessive force or were deliberately indifferent, the verdict should stand, not be set aside because the parties could not find an indistinguishable Tenth Circuit or Supreme Court decision.  Finally, to always decide the clearly established prong first and then to always say that the law is not clearly established could be stunting the development of constitutional law.

O'Farrell v. Bd. of Commissioners for Cty. of Bernalillo, No. 17-1052, 2020 WL 1955292, at *19 n.29 (D.N.M. Apr. 23, 2020) (quotation omitted).  Fifth Circuit Judge Don Willett—a Trump appointee—has also voiced a criticism of the doctrine:

[T]he judge-made immunity regime ought not be immune from thoughtful reappraisal. . . . [Q]ualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question “beyond debate” to “every” reasonable officer.  Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. This current “yes harm, no foul” imbalance leaves victims violated but not vindicated. Wrongs are not righted, and wrongdoers are not reproached. . . .

Two other factors perpetuate perplexity over “clearly established law.” First, many courts grant immunity without first determining whether the challenged behavior violates the Constitution.  They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent.  Forgoing a knotty constitutional inquiry makes for easier sledding, no doubt. But the inexorable result is “constitutional stagnation”—fewer courts establishing law at all, much less clearly doing so.  Section 1983 meets Catch-22.  Plaintiffs must produce precedent even as fewer courts are producing precedent.  Important constitutional questions go unanswered precisely because no one’s answered them before.  Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law  = no liability. An Escherian Stairwell.  Heads government wins, tails plaintiff loses. 

Second, constitutional litigation increasingly involves cutting-edge technologies.  If courts leapfrog the underlying constitutional merits in cases raising novel issues like digital privacy, then constitutional clarity—matter-of-fact guidance about what the Constitution requires—remains exasperatingly elusive. Result: gauzy constitutional guardrails as technological innovation outpaces legal adaptation. 

Qualified immunity aims to balance competing policy goals: “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”  And I concede that the doctrine enjoys special favor at the Supreme Court, which seems untroubled by any one-sidedness.  [But e]ven in this hyperpartisan age, there is a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence.

Indeed, it’s curious how this entrenched, judge-created doctrine excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.  Count me with Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

Doctrinal reform is arduous, often-Sisyphean work. Finding faults is easy; finding solutions, less so. But even if qualified immunity continues its forward march and avoids sweeping reconsideration, it certainly merits a refined procedural approach that more smartly—and fairly—serves its intended objectives. 

Zadeh v. Robinson, 928 F.3d 457, 479-81 (5th Cir. 2019) (Willett, J. Dissenting) (quotation omitted; emphasis added).  In other cases, too, Judge Willett has been emphatic about having the Supreme Court take another look at the doctrine.  See Cole v. Carson, 935 F.3d 444, 470 (5th Cir. 2019) (Aug. 21, 2019) (“I repeat what I said last month: The entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.”) (Willett, J. Dissenting).

And these judges are not alone.  There are, “many voices critiquing current law as insufficiently protective of constitutional rights,” including many from the federal bench, on both sides of the political divide.  McCoy v. Alamu, 950 F.3d 226, 237 (5th Cir. 2020) (Costa, J. dissenting); see, e.g., Russell v. Wayne Cty. Sch. Dist., No. 17-154 , 2019 WL 3877741, at *2 (S.D. Miss. Aug. 16, 2019) (“Judge Willett is not a solo performer. There is a chorus.”); Fogle v. Sokol, No. 19-1066, 2020 WL 1921611, at *5 n.11 (3d Cir. Apr. 20, 2020) (“There is growing concern that the doctrine of qualified immunity has likewise diverged from the historical inquiry mandated by the statute.”) (quotation omitted); Ventura v. Rutledge, 398 F. Supp. 3d 682, 697 n.6 (E.D. Cal. 2019) (“[T]his judge joins with those who have endorsed a complete re-examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”).

It appears that these voices have been heard.  By May 18th, we will finally know whether the Justices are prepared to confront one of the most pernicious doctrines in its repertoire.  Here is the complete list of the thirteen different petitions that have been distributed for the May 15th conference:

·      Baxter v. Bracey, 751 F. App’x 869 (6th Cir. 2018).  The Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up.

·      Brennan v. Dawson, 752 F. App’x 276 (6th Cir. 2018).  The Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape.  The court held that this warrantless invasion of the property violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.”

·      Zadeh v. Robinson, 928 F.3d 457 (5th Cir. 2019).  The Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients.

·      Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019).  The Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-​year-​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat.

·      Kelsay v. Ernst, 933 F.3d 975 (8th Cir. 2019).  The Eighth Circuit granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.”

·      West v. City of Caldwell, 931 F.3d 978 (9th Cir. 2019).  The Ninth Circuit granted immunity to police officers who bombarded an innocent woman’s home with tear-gas grenades. The homeowner had given the officers permission to enter her home to look for a suspect, but never consented to anything like the practical destruction of her home that resulted. Nevertheless, the court granted immunity on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that the homeowner had given.

·      Jessop v. City of Fresno, 936 F.3d 937 (9th Cir. 2019).  The Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” 

·      Mason v. Faul, 929 F.3d 762 (5th Cir. 2019).  The Fifth Circuit granted immunity to a police officer, unprovoked, who shot a man seven times in response to a 911 call. 

·      Cooper v. Flaig, 779 F. App'x 269 (5th Cir. 2019).  The Fifth Circuit granted immunity to officers who killed an unarmed man in his parents’ home by tasing him nine times while he was having an acute mental-health episode.

·      Anderson as trustee for next-of-kin of Anderson v. City of Minneapolis, 934 F.3d 876 (8th Cir. 2019).  The Eighth Circuit granted immunity to 911 first responders who were alleged to have prematurely declared a 19-year-old dead of hypothermia, in violation of their own emergency protocols, thereby depriving him of what could have been life-saving medical assistance.

·      Clarkston v. White, 943 F.3d 988 (5th Cir. 2019).  The Fifth Circuit granted immunity to a state education official who was alleged to have caused the denial of a charter school application in retaliation for remarks made by the school's CEO about disciplinary practices.

·      Cole v. Carson, 935 F.3d 444 (5th Cir. 2019), as revised (Aug. 21, 2019).  The Fifth Circuit denied immunity to an officer who shot a 17-year-old boy without warning.  Although the boy was holding a gun, he had made no threatening gestures toward the officers and was facing away from them and unaware of their presence when he was shot. At the en banc stage, this case generated a lively discussion between several Fifth Circuit judges about whether qualified immunity should be reconsidered, including a dissent by Judge Willett asking the Court to take up the issue.

·      Ermold v. Davis, 936 F.3d 429 (6th Cir. 2019)  This case involves Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same-sex couples in the wake of the Supreme Court’s landmark decision in Obergefell v. Hodges. The couples sued Davis for violating their right to marry, and the Sixth Circuit denied immunity, finding that their rights were clearly established.

The fact that the High Court sent all thirteen of these cases to conference on the same day is an unambiguous indication that the Justices are taking a serious look at the doctrine, behind closed doors for now, but hopefully in open court soon. 

Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle.  His practice includes civil rights and wrongful death litigation.  He can be reached at (206) 909-3842 or ryan@galandabroadman.com.

We're Ten Years Old

On April 10, Galanda Broadman celebrated its 10-year anniversary. We are deeply grateful to you: our clients, families, friends, and networks.

Please Support Wedgwood Small Businesses Today

We are all in this together. Our local small businesses and their employees especially need our help.

Please patronize and support them regularly.  In addition to buying for today, consider buying a gift card for another day.  For any to-go food or drink orders, please consider tipping more than normal (at least 20%).  

The following 35th Avenue NE small businesses, listed in alphabetical order, remain open for your patronage:

Blue Poppy Floral
Current Hours of Operation: 10:30 a.m.-5 p.m. Tues.-Sat.; 10 a.m.-2 p.m. Sun; closed Mon. 
Contact Information: 206-992-0739
Notes: Curbside pickup for flower orders available.  Call ahead, or order online at https://www.bluepoppyfloral.com/.

Cafe Javasti
Current Hours of Operation: 7 a.m.-4 p.m. 7 days/week. Take out only.
Contact Information: 206-204-0255
Notes: Coffee, baked goods, and food available. 

Galanda Broadman, PLLC
Current Hours of Operation: As needed
Contact Information: gabe@galandabroadman.com
Notes: Offering pro bono legal assistance for local small businesses.

Grateful Bread
Current Hours of Operation: 7 a.m.-6 p.m. 7 days/week. Take out only.
Contact Information: 206-525-3116
Notes: Coffee, baked goods, and food available. 

HomeStreet Bank
Current Hours of Operation: Mon.-Fri., 9 a.m.- 6 p.m.; Sat. 10 a.m.-1 p.m.
Contact Information: 206-525 2840

Johnson’s Auto Repair
Current Hours of Operation: Mon.-Fri., 7:30 a.m.-5 p.m.
Contact Information: 206-522-3305

Johnson’s Spirit Gas Station
Current Hours of Operation: Pumps open 24/7 
Contact Information: 206-525-3387

Larry Adatto DDS 
Current Hours of Operation: Mon., 9 a.m.-1 p.m.; Wed., 9 a.m.-1 p.m. 
Contact Information: 206-526-9040
Notes: Open strictly for emergencies; please reach out to us if an accidents happen or if you're experiencing any sort of pain.

Lulu's (New Business Across from Bank of America)
Current Hours of Operation: 10 a.m.-7 p.m. 7 days/week. Take out only.
Contact Information: 206-946-6778
Notes: Bubble tea, desserts and food available. 

Restaurant Zouave (2615 NE 65th)
Current Hours of Operation: 3-9 p.m. 7 days/week.  Take out only.
Contact Information: 206-525-7747
Notes: Abe, the owner and chef, said to just go there or call and he can make items off the menu or a dish with ingredients he has on hand. Menu available at http://www.zouaverestaurant.com/.

Van Gogh Coffeehouse 
Current Hours of Operation: 7 a.m.-5 p.m. 7 days/week. Take out only.
Contact Information: 206-623-1466
Notes: Coffee, breakfast sandwiches and lunch sandwiches available. Call or come in.

Veraci Pizza Wedgwood
Current Hours of Operation: Daily from 11 a.m. - 9 p.m. 7 days/week. Take out only.
Contact Information: 206-452-5013
Notes:  Open daily for Pick-Up/Take-Out/Online Delivery Orders.

Wedgwood Alehouse
Current Hours of Operation: 4-8 p.m. 7 days/week. Take out only.
Contact Information: 206-527-2676
Notes:  Curbside pickup available.  Call ahead.

Wedgwood Broiler
Current Hours of Operation: 5-8 p.m. 7 days/week. Take out only.
Contact Information: 206-523-1115
Notes:  Open daily for to-go orders.

Wedgwood Laundromat
Current Hours of Operation: 7 a.m.-9 p.m. 7 days/week
Contact Information: info@wedgwoodlaundromat.com or 425-471-9899
Notes:  We haven't had to change our hours or operation yet.  If we do, it will be on our website. Please check our website for updates.

State Court Honors Nooksack “Disenrollee” Treaty Fishing Rights

The Rabangs with Corin La Pointe-Aitchison of Galanda Broadman (at right), at the Whatcom County District Court, on February 10, 2020

Last Thursday, the Whatcom County District Court dismissed criminal charges against Michael, Francisco, James, and Lisa Rabang for subsistence clamming outside of Bellingham, Washington last May without a state recreational shellfish license.  The Rabangs are part of the extended family of purportedly disenrolled Nooksack Indians commonly known as the Nooksack 306.

The Rabangs argued to the state court that because they were never lawfully disenrolled by the Nooksack Tribe, they still enjoy Treaty rights to fish in usual and accustomed Nooksack fishing places. Under federal law, those Treaty rights include the right to take shellfish without a state license and those Treaty fishing grounds include the Semiahmoo Spit, where the Rabangs were criminally cited by the Washington State Department of Fish and Wildlife last spring. 

The District Court dismissed each of the charges “in the interests of justice.”

“My clients have steadfastly maintained that they have never been lawfully disenrolled from the Nooksack Tribe and a state court judge now seems to agree with them,” said Gabriel S. Galanda, the Rabangs’ criminal defense lawyer.  “They have always been and will always be Nooksack.”

In 1855, the Nooksack Tribe signed the Point Elliott Treaty, which guaranteed Nooksack Indians “the right of taking fish at usual and accustomed grounds.” Washington State recognizes Semiahmoo Spit as one of several usual and accustomed Nooksack fishing areas. 

Despite its status as a Treaty signatory, the Nooksack Tribe did not obtain federal recognition until 1973, at which time they began to enroll Tribal members.  The Rabangs have been enrolled with the Nooksack Tribe dating back to the early 1980s. 

The Nooksack Tribal Council proposed that the Rabangs be disenrolled in February of 2013, but a series of Nooksack trial and appellate court and federal administrative court injunctions and stays prevented the disenrollment. 

A group of holdover Tribal Councilpersons purported to disenroll the Rabangs anyway, in November of 2016.   But the Federal Government interceded. 

In late 2016, U.S. Department of the Interior Principal Deputy Assistant Secretary of Indian Affairs Lawrence Roberts issued three decisions that operated to invalidate the purported disenrollment activity. Those decisions were never withdrawn by Interior; they stand today. 

By March of 2018, a newly constituted and recognized Tribal Council again attempted to disenroll the Rabangs, even though disenrollment remained frozen by the tribal and federal courts.  Those injunctions did not lift until April of 2019, if at all. 

Having not been since disenrolled, the Rabangs exercised their Nooksack Treaty fishing rights by harvesting clams at Semiahmoo Spit during the early evening on May 10, 2019.  When a law enforcement officer approached them and asked if they had state shellfish licenses, the Rabangs produced their Nooksack enrollment cards instead and explained they were subsistence clamming.

The officer reported that James Rabang “stated ‘no’ they do not to have any permits to harvest for subsistence.” It seems the Rabangs were right.

Facebook’s Violence Against Indigenous Women Problem

Example post from fake Keith Williams Facebook page, at left; Leandra Smith social media post, upper right; real-life Keith Williams photo, lower right.

Last month, High Country News published a feature story by local writer Jane Hu titled, “One woman took a stand against tribal disenrollment and paid for it.” 

The article chronicles how a few tribal politicians and their surrogates persecuted Carmen Tageant, an Indigenous woman who belongs to the Nooksack Tribe and served on its Tribal Council, because she denounced their efforts to exile over 300 other Nooksack Indians from the Tribe.  They burglarized Carmen’s home in rural Whatcom County and stole photos of her in lingerie, which she had taken as a Valentine’s Day gift for her boyfriend sixteen years prior. 

That was only the beginning.   

In January of 2016, a Nooksack Tribal employee, LeAndra Smith, posted a photo of Carmen posing with her legs in the air on a fake Facebook profile.  That page bore the name and photo of Keith Williams, a witness involved in the Casey Anthony murder trial in 2008.  Using federally funded computer equipment, a cell phone, and the Nooksack Tribe’s data network, LeAndra—masquerading as “Keith”—proceeded to write, post, share, and like hateful statements on that Facebook page about Carmen, like: “Spreading lies and legs,” “Kick that slutbox to the curb,” and “C.U.N.T.”  Carmen soon received messages from predators on Facebook, hounding her for sex and inviting her to meet up at nearby hotels.  She feared for her safety, and for that of her seven children, and eventually suffered a debilitating mini-stroke as a result.  She was removed from public office.  Despite her master’s degree, Carmen could not find other employment because of her damaged reputation and her medical condition.  She was forced to file for bankruptcy. 

This article explains what happened, and did not happen, for Carmen legally. It explains how available legal processes do not protect victims from cyber bullying or sexual harassment on Facebook, or deter the physical stalking or violence that stems from online attacks. 

Carmen Tageant #StopDisenrollment

In early February of 2016, Carmen reported to Facebook: “Keith Williams is a fake profile…He is posting stolen photos of me and slandering me[, c]yber bullying me and my reputation.  Please help. I’m going to law enforcement.” Facebook messaged Carmen a reply ten days later: “We received your report and appreciate your patience and we work to fix technical problems on Facebook.  Though we can’t update everyone who submits a report, we’re using your feedback to improve the Facebook experience for everyone.”  Carmen’s situation was not a technical problem.  Nor was it a matter of improving everyone’s Facebook experience.  She sought protection, without any success.  Facebook never got back to Carmen.  Nor did Facebook ever take down the Keith Williams page.

“Keith Williams” remained online for the next two years, during which time Carmen was subject to a constant barrage of hatred.

Carmen also reported to Nooksack Tribal police “about a private picture of her in lingerie being shared on the social media website FaceBook.”  She also filed a report with the Whatcom County Sheriff, explaining that after the lingerie photo was posted, she “was always looking over [her] shoulder . . . and watched the facebook slander continue to demolish my reputation.”  Nothing came of either report to local law enforcement. 

Nobody has yet been charged for the crimes against Carmen.

In January of 2018, we filed suit against “John Doe” in Whatcom County Superior Court, claiming common-law state torts and violation of RCW § 4.24.795, Washingon State’s new “revenge porn” law.  Alleging that “nothing meaningful has been done…to investigate the harassment she has endured…or to ascertain Defendant John Doe’s true identity,” Carmen sought “answers, and justice, through this civil proceeding.” We moved the Superior Court for a subpoena duces tecum to Facebook, seeking the user information associated with the page needed to identity Carmen’s tormentor.  We briefed and overcame Defendant John Doe’s First Amendment privacy rights, demonstrating to the Court, even on an ex parte basis, that a narrow request for the identifying information minimized any prejudice to the defendant—whoever that was. 

We were surprised to learn that arguably even a John Doe-harasser has a free speech right to remain anonymous. 

We domesticated the subpoena in the San Mateo County Superior Court and served it upon Facebook in Menlo Park, California, which resulted in a letter from Facebook’s outside counsel that objected to the extent we sought “the content of a user’s electronic communications” and cited to the federal Stored Communications Act. 18 U.S.C. § 2702(a)(1), (2); (b)(1)-(8).  In other words, we could not obtain any messages that the individual masquerading as Keith Williams sent or received through Facebook—such as messages that may reveal who burglarized Carmen’s home. 

Facebook agreed, however, to produce “reasonably accessible basic identifying information (which may include name, email address, date of account creation, and information such as recent [Internet Protocol (IP)] logs for when a user account has logged in and out of Facebook),” but “recent” only meant the few most recent months of user data—and not that for the early 2016 lingerie post—because Facebook routinely deletes that data.  Facebook also said it would give “notice to the affected user and allow[ing] the user 21 days to file an objection with the court.”  We presume Facebook gave LeAndra notice and she ignored it—for fear of outing herself—but Carmen was not privy to that line of communication. 

After two months of subpoena process, Carmen finally obtained the Facebook user information associated with the Keith Williams page.  But it was not yet enough to identify her harasser. 

What the Facebook user information did reveal was that Verizon Wireless and Comcast owned the IP addresses that show user access to the Keith Williams page.  With that information, we headed back to Whatcom County for records subpoenas to Verizon and Comcast.  We again briefed John Doe’s free speech privacy rights, this time along with the federal Cable Privacy Act, which prohibits a cable operator from disclosing “personally identifiable information concerning any subscriber without the prior or electronic consent of the subscriber,” unless disclosure is made per court order and upon notice to the subscriber. 47 U.S.C. § 551(c)(1). The Superior Court issued two more subpoenas. We then headed to New Jersey to domesticate and serve them on Verizon and Comcast.  

Comcast notified the Nooksack Indian Tribe of its subpoena, which caused the Tribe to seek a protective order in Whatcom County—and implicate itself.  The Tribe claimed that its sovereign immunity shielded Comcast from the subpoena.  The Whatcom County Superior Court disagreed and refused to issue a protective order, and both companies produced the subscriber information connected to the Keith Williams page. 

We were stunned when that information pointed to the Nooksack Tribe’s server, a personal computer and tablet used at the Tribe, and LeAndra Smith’s cellular number and iPhone.

It took two and a half years for Carmen to identity the person who used Facebook to cause her a stroke, bankrupt her, and otherwise ruin her life.

With the technological proof in hand, our office engaged a former FBI agent to do law enforcement’s work.  He issued a detailed report that showed exactly how “Tageant was the target of cyber harassment” through the use of  “federally funded information technology that traces to at least one person, one cellular phone, and [IP] addresses connected to the Nooksack Indian Tribe…”  We transmitted the agent’s report to the U.S. Department of Justice.  Only after a U.S. Congressperson sought answers from the Justice Department was a response issued: word from the Office of Attorney General Bill Barr that “no federal criminal charges can be brought at this time.” 

Criminal justice still eludes Carmen.

We did settle Carmen’s civil case soon later after we identified LeAndra, who still works for the Nooksack Tribe.  But imagine if Carmen—like the vast majority of Indigenous women—did not have legal counsel.  She would have never been able to identify her Facebook harasser, or do anything to cause the cyber abuse to stop. 

Imagine if Carmen’s life was being imminently threatened, while we patiently negotiated federal and state privacy law and records subpoena process in three states.  She would have been left helpless, without police protection—left to constantly look over her shoulder. 

Our laws and legal processes, as they relate to Facebook and its Big Tech brethren, are inadequate and unethical.  They are morally wrong.  They aid and abet, rather than expose and disarm, cyber abusers.  That is especially true in Indian Country, where the number of missing and murdered Indigenous women has reached an epidemic level.  Unless we overhaul our legal system, there will be more victims like Carmen.  

We can be sure that Facebook will fight any legal reforms, under the guise of free speech and privacy.  In the meantime, lawyers and lawmakers who refuse to protect Indigenous women put them at risk.  It is not a risk Indigenous families can bear.     

Gabriel S. Galanda is the Managing Lawyer at Galanda Broadman, PLLC, an Indigenous rights law firm.  Gabe belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.  He credits Elisabeth Guard and Bree Black Horse and for Carmen’s civil legal success.

Gabe Galanda Calls Upon NCAI To No Longer "Look Away" From Disenrollment

Gabe Galanda appeared on Native American Calling today for the show, “Disenrollment—on the rise?”

Joined by Dr. David Wilkins, Gabe explained the very latest rise in disenrollment, observing: “We are basically in a termination era much like we were in the 1950s. We’re in a tribal self-termination era.”

In response to a question about what Indian Country can do to prevent further self-determination, Gabe called for the National Congress of American Indians (NCAI) to end its silence on disenrollment:

The national Indian organizations absolutely must begin to tackle this issue.  They have sat silent for too long and they are complicit in this mode of self-termination. 

Thy say ‘oh it’s an internal matter, it’s a sensitive matter’ and candidly that’s hypocritical. 

They say the United States shouldn’t be involved because it’s ‘internal’ or ‘sensitive’ and that’s hypocritical. 

When our children are at risk under the Indian Child Welfare Act, we ask the United States to write a rule to protect the children, which the Obama Administration did. 

When our women are being abused by non-Indian domestic violence offenders in Indian Country, we ask the United States Congress [to] restore our inherent tribal jurisdiction under the Violence Against Women Act. 

Now our women are being murdered and going missing at epidemic rates and we have asked the Trump Administration to do something about it. 

Those are also ‘internal matters.’  Those are also ‘sensitive matters.’ 

Indian Country is on the same page on those issues. They’re asking for the United States’ help.  They’re talking to each other about a solution at forums like NCAI. 

But on disenrollment it is a cop out to suggest it is ‘internal’ or ‘sensitive’ and look away.  And for as long as NCAI or other groups look away and sit silent, they are complicit.

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

Our Trustee Must Help Stop Disenrollment

Indigenous America is one again facing off with disenrollment. 

History shows that the rise and fall of disenrollment correlates to the federal government’s behavior toward that tribal self-terminationist practice.

The United States owes each Tribal citizen a trust responsibility of exacting care and loyalty, which includes protection against politically motivated disenrollment.  Ironically, though, federal laws have been catalysts for every disenrollment. 

Disenrollment stems from a confluence of historic and modern federal forces:

·      Racialized notions of Indian Tribal individual status, like the trope of “mixed blood” under the federal Dawes Act in the late 1800s;

·      Blood quantum, the Euro-centric racial fiction created and codified by Congress dating back to 1908;

·      Non-traditional constitutional governance, membership, and disenrollment systems, as per the federal Indian Reorganization Act (IRA) of 1934;

·      “Pro rata” or “per capita” distributions of Tribal communal wealth to enrolled individuals, thanks to Congress’ Lacey Act of 1907 and Indian Gaming Regulatory Act of 1988;

·      Congress’ termination of Tribes in the 1950s and the reassembly and federal re-recognition of Tribes since the 1970s; and

·      “[G]raft, corruption, and the making of decisions by inexpert minds,” which, in 1941, IRA-drafter Felix Cohen foretold of non-Indigenous power systems.

In each of these ways, one after the next, the federal government has decimated Indigenous kinship systems, or what Dakota anthropologist Ella Deloria described as community norms of “decency and order”—in essence, “achieving civility, good manners, and a sense of responsibility for every individual dealt with. “

Even worse, the United States has annihilated certain Indigenous communities’ inherent ability to self-resolve internal crises; or, as Deloria explained, to enforce  “the rules imposed by kinship.”  Too many of those imperiled communities now risk self-annihilation without federal protection that will enable Tribal kinship revival.

The United States’ failed reliance upon Tribal self-determination to avoid such existential crises is a neocolonial excuse to finally kill the Indian and save the man.

All the while, disenrolling Indian politicians exploit these tensions to fulfill their own agenda: Concentrate Tribal cash and resources to favor their political base and, in turn, sustain their personal wealth and political power.  As they plot their scheme, those politicians pay lawyers and lobbyists to ascertain whether the federal government is watching—and willing to do anything to stop them.

From 1908 to 2009, the federal government did stand watch over disenrollment.  The Department of the Interior adjudicated or reviewed disenrollment actions in fulfillment of the United States’ Treaty and other promises to protect Indigenous Americans, which constitute a “moral obligation of the highest responsibility and trust” according to the U.S. Supreme Court.  Seminole Nation v. U.S. (1942).

In fact, until at least the late 1990s it was codified Bureau of Indian Affairs (BIA) policy to review disputed Tribal disenrollment determinations.  BIA involvement continued for two decades after the Supreme Court’s insidious jurisdictional decision in Santa Clara Pueblo v. Martinez (1978).

It was not until the spring of 2009 that the Obama Administration abruptly looked away from disenrollment affairs, citing “a policy of Indian self-determination and self-government.”  By that time, disenrollment was largely confined to California. But that casual federal policy decision, though well intentioned, proved disastrous. 

Tribal politicians seized the moment.  Disenrollment exploded into twenty states.  Dozens of Indigenous communities were co-opted.  Tribal courts were overthrown.  Police violence erupted.  Thousands of Tribal citizens were exiled.

All of Indian Country suffered a black eye.

By 2016, Interior corrected course.   Amidst multiple federal Indian Country justice initiatives—the Tribal Law and Order Act most notably—the Obama Administration grew concerned about perceptions of Tribal justice systems as corrupt and unjust. 

Interior took action, making examples out of the most egregious disenrollment offenders.  The agency suspended the Nooksack Tribe’s federal funding recognition amidst unfathomable disorder surrounding the disenrollment of 306 Tribal citizens; and intervened in federal court when the entire 132-person Elem Pomo Colony population faced disenrollment and exile.  The National Indian Gaming Commission shuttered lucrative gaming facilities at Nooksack and the Picayune Rancheria of Chukchansi Indians, where the rule of law had ceded to violence and anarchy.

Offering insight into the United States’ thinking at the time, immediate past Interior Assistant Secretary of Indian Affairs, Dean Kevin Washburn, warned that Tribes engaged in “unjust disenrollment” could face federal “diplomatic consequences, which could be fiscal in nature, equivalent to economic sanctions.” 

Indian Country took note, and disenrollment waned. For almost three years, there was not a new disenrollment.  

But that changed by late 2018.  With the Trump Administration too preoccupied to stop Tribal corruption or reflect upon the real-life consequences of its actions or demurrals, Interior officials sanctioned two obviously illegal elections at Nooksack and proposed to cease BIA blood quantum determinations. 

Tribal despots realized the Trustee’s priorities had shifted, and took full advantage.

Omaha Tribe of Nebraska politicians disenrolled fifteen citizens and placed hundreds more in harm’s way via clandestine blood quantum adjustments.  A Modoc Tribe of Oklahoma conspirator terminated a three-generation family of fifteen after an elder questioned his “rent-a-tribe” schemes. The Rincon Band of Luiseno Indians disenrolled at least nine citizens based on a non-Indian anthropologist’s blood quantum “audit” findings and California Indian Legal Services’ advice.  And Picayune autocrats jettisoned another sixty tribal citizens, just because they could.

Disenrollment returned and Indian Country’s black eye darkened—and it is only worsening. 

(A forthcoming disenrollment documentary movie produced by California card-room owners, titled “Banished,” will further tarnish all Tribes’ reputations.)

History shows that the United States deters disenrollment through performed duty.  “See no evil, hear no evil” is not acceptable federal policy.  Nor is it lawful. The United States has a moral trust responsibility, according to the highest laws in the land, to protect against disenrollment.  America’s “national honor has been committed” to guard Tribes and Tribal citizens alike.  Heckman v. U.S. (1912).

Whether through exercising federal discretion to diffuse Tribal corruption, imposing government-to-government economic sanctions, amending the Indian Civil Rights Act, or deploying other deterrent measures, our Trustee must do something.

The United States must help stop disenrollment.

Gabriel S. Galanda is the Managing Lawyer at Galanda Broadman, PLLC, an Indigenous rights law firm.  Gabe belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples.  The fifth annual #StopDisenrollment visual advocacy movement will happen on February 10, 2020.

Seattle National Archives Closure Would Hurt Northwest Tribal Heritage

The Trump Administration is preparing to shutter the National Archives facility located in Seattle’s Sand Point neighborhood and sell the property to the highest bidder. This plan would hurt Indian Country, particularly Indigenous Americans who seek to prove or confirm their belonging in their Tribal communities.

The Sand Point location is a repository for all federal records generated in the Pacific Northwest, including historical documents relating to the 272 federally recognized tribes in Alaska, Washington, Oregon, and Idaho. Notably, “[i]t contains important treaty documents.” As Josh Wisniewski, an anthropologist for the Port Gamble S’Klallam Tribe, explained to the Seattle Times: “You can see an earlier draft of a treaty.”

The facility also includes various federal land, census, and other information that tribes and tribal citizens use to establish or confirm tribal history and heritage. As genealogist and historian Trish Hackett Nicola explains:

Tribal members use these files to establish or keep membership in tribes. Proof of tribal citizenship is used to obtain education funds. Tribal records have been used for retaining fishing rights, as in the Boldt Decision. Native school records from Alaska and Oregon are included in the NARA collections.

The Muckleshoot, Puyallup, and Port Gamble S’Klallam Tribes were quick to denounce the proposed closure and sale. Read Puyallup and Port Gamble’s opposition letters here.

Senators from Washington, Alaska, Oregon and Idaho, and eight of Washington’s ten House Representatives also condemned the proposal, in part because of the negative impacts it would have on Indian Country.

The facility houses records, both archival and in storage, that are vital to...tribal members…

Nor were Native American tribes or Alaska Natives consulted about the proposed relocation of records so important to their sovereignty and history.

This facility’s Textual Research and Public Access Research Rooms...provide in-person access to records of importance on a broad range of issues and topics...including....tribal membership…

Our firm has represented many Indigenous persons who seek Tribal citizenship, and hundreds of Tribal citizens facing disenrollment by politicians in charge of Tribal governments in Washington and Oregon.

The Sand Point location, which is within two miles of our office, is one of those clients’ first stops when seeking to establish or confirm that they belong to their Indigenous communities.

Disenrollees, in particular, travel from throughout the Northwest to Sand Point, at significant expense, to search for federal allotment and other Indian land records; U.S. censuses and Indian rolls; and Indigenous ancestors’ marriage and birth certificates and other vital records. They do so with a proverbial gun to their head, often expected to find such genealogical information within a few weeks.

Moving those records to National Archives storage in Kansas City and Southern California would render that information unavailable to disenrollees when needed the most, as well as other Indigenous Americans who casually seek ancestral information to ascertain or confirm their sense of belonging.

All of Indian Country would suffer if this plan is realized. Please do your part to help preserve our heritage:

1. Email the Office of Management and Budget’s Acting Director Russell T. Vought:  Russell.t.vought@omb.eop.gov.

2. Email the agency proposing the sale, the Public Buildings Reform Board: fastainfo@pbrb.gov.

3. Contact the National Archives via its contact page at https://www.archives.gov/contact.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.

Trump’s NEPA Rollback Will Hurt Indigenous Communities

By Amber Penn-Roco

President Trump proposes to gut the National Environmental Policy Act (“NEPA”). 

A proposed rule, now published in the Federal Register, suggests significant changes that would narrow the range of projects that would require  NEPA review and impose strict deadlines for the completion of NEPA review.  The changes would also eliminate the need for agencies to consider the “cumulative impacts” of projects, namely: climate change.  The changes would also make it more difficult for affected local communities to comment on projects.

Minority communities would be disproportionately impacted by the proposed changes.  “The most vulnerable communities are going to pay with lives and their health.  They always have,” said Mustafa Santiago Ali with the National Wildlife Federation, previously a senior advisor at the Environmental Protection Agency.  “Moving forward with this is reckless and will endanger the lives of black and brown communities and indigenous communities.  It’s really that simple.”

Historically, the Intergovernmental Panel on Climate Change found that:

Indigenous peoples of North America are disproportionately vulnerable to climate change.  The most vulnerable industries, settlements, and societies are generally those in coastal and river flood plains; those whose economies are closely linked with climate-sensitive resources; and those in areas prone to extreme weather events.  Nearly all tribes fit into one of those categories . . .

The Intergovernmental Panel found that, in particular, Tribes that rely on fisheries will be significantly impacted by climate change, explaining:

The Environmental Protection Agency predicts that the next 40 to 80 years will see the loss of more than half of the salmon and trout habitats throughout the United States.  These are fish that a large number of tribes rely on for subsistence, cultural practices, and economic development.  Native foods and fisheries are also declining, and tribal access to traditional foods and medicines is often limited by reservation boundaries.  The large role of climate change in separating tribal people from their natural resources poses a threat to Indigenous identity.

Indigenous communities will be disproportionally impacted by any impacts to the environment caused by the rollback of NEPA, particularly insofar as the proposed rule would: (1) eliminate the consideration of climate change impacts; while (2) limiting the voices of local communities. 

That’d amount to a double whammy for Indigenous peoples.

The proposed rule is subject to a 60-day public comment period; public comments must be received by March 10, 2020.  The proposed rule will also be subject to two public hearings, in Denver, Colorado on February 11, 2020; and in Washington, DC on February 25, 2020. 

I strongly urge Indigenous communities and leaders to submit public comments challenging the proposed rule and to ensure Indigenous voices are heard at both of these hearings.

Amber Penn-Roco is an Owner of Galanda Broadman, PLLC.  Amber practices in the firm’s Seattle office.  Amber’s practice focuses on the protection of tribal environmental, natural and cultural resources.  Her practice also includes promoting the economic development of tribes.  She is an enrolled member of the Chehalis Tribe.

Amber Penn-Roco Promoted to Partner at Galanda Broadman

On January 1, 2020, the Galanda Broadman law firm welcomed Amber Penn-Roco into its ownership ranks. Amber’s practice focuses on Indigenous environmental compliance, permitting, and litigation, from the tribal governmental point of view.  She represents Tribes and Tribal citizens throughout the West.

“I am so proud of my work at Galanda Broadman, where I have been allowed to make my passion into a practice,” said Amber. “I am proud to call myself an Indigenous environmental lawyer. I’ve dedicated my practice to the protection of natural and cultural resources and I’m thrilled to continue my work as a partner on behalf of Indigenous peoples.”

Over the last several years, Amber has fought for tribal clients in Washington and Oregon who seek to protect the Columbia River Gorge and Pacific Coast from fossil fuel contamination. 

On behalf of a Treaty Tribe, she persuaded the Columbia River Gorge Commission to uphold a county’s denial of a railroad expansion permit that was being sought to increase fossil fuel cargo in the Gorge.  She also helped the Tribe persuade the Washington State Energy Facility Site Evaluation Council to deny a permit that would have allowed Tesoro Savage to transport 360,000 barrels of crude oil each day through the Gorge.

To accomplish these results for her tribal clients, Amber uses federal and state environmental statutes—like the National Environmental Policy Act, federal Endangered Species Act, and State Environmental Policy Act—as well as federal Indian Treaties and tribal environmental laws.

“I have the distinct honor of helping Tribes protect their homelands for sake of the next seven generations,” continued Amber. “I help protect their air, their waters, and their spectacular sacred places.  I am indebted to my tribal clients for the opportunities they have given me.”

Amber also helped 66 Grand Ronde Tribal citizens who directly descend from the Tribe’s Treaty Chief, avoid political disenrollment.  She co-chaired administrative, trial, and appellate litigation that began in 2013 and culminated with a watershed appellate decision in 2016.  That decision required the family to be re-enrolled.  

In recognition of her various professional accomplishments, Super Lawyers magazine has bestowed Amber with its “Rising Star” honor for the last four consecutive years.  During that same timespan, she has served on the Editorial Board for the National Lawyers Guild’s prestigious journal, Review.

In 2016, Amber published “Standing Rock and the Erosion of Tribal Rights” in Review, where she decried that “Tribes are suffering from an onslaught of projects…that imperil their rights and their sacred duty to protect their surrounding natural resources and culture.” She explained:  “A tribe’s rights are often attacked on multiple fronts. Projects that threaten them are often wide-scale and multi-dimensional.  Tribes are often forced into a battle of attrition, in which they must defend their rights before a wide variety of decision-makers.”

In 2018, Amber also published “Trump's Dismantling of the National Monuments: Sacrificing Native American Interests on the Altar of Business” in Review, condemning the Trump Administration’s demolition of Bears Ears and other National Monuments, which are also sacred spaces for many Indigenous peoples.  She excoriated President Trump for his “utter disregard for the preservation of the land and for the recognition of tribal interests,” explaining: “he has proven that when those interests compete with private business interests, he will always protect the businessman, to the detriment of tribal people across the nation.” 

Fearing, as she wrote in 2016, that “Tribes are suffering a death by a thousand cuts”—through battles in sacred places like the Columbia River Gorge, Standing Rock, and Bears Ears—Amber is ever-committed to protecting Indigenous communities from legal, environmental, or cultural harm.

Nine years ago, Amber began her career at K&L Gates, where she represented the Duwamish Tribe, pro bono, in their efforts to seek federal recognition.  She also worked in the Native American Unit of the Northwest Justice Project, helping to provide access to justice to indigent Indigenous populations.  Amber received her law degree from the University of Washington School of Law.

Amber was born and raised in Chehalis, Washington. She is married to David Caverly, a private chef, and she is mother to their baby girl, Lily.  In her free time, she enjoys reading, hiking with her dogs, and going to street fairs.  Amber is an enrolled member of the Confederated Tribes of the Chehalis Reservation.

Galanda Broadman is an Indigenous Rights Law Firm with seven lawyers, and offices in Seattle and Yakima, Washington and Bend, Oregon and an affiliate in Tucson, Arizona.  In existence since 2010, the firm is dedicated to protecting and defending Indigenous Treaty and sovereign rights, economic interests, and human rights.

“I am excited for my future with the firm and the ability to take a more active role in our team’s practice of law,” concluded Amber.  “And I am excited to help protect Indigenous America against further environmental degradation or cultural destruction.”