9th Circuit Shrugs Off Nooksack Judges’ Harassment of Domestic Violence Victim

In an exercise of judicial realism, the Ninth Circuit Court of Appeals gutted the bad faith exception to tribal court exhaustion on Tuesday in an unpublished opinion.

Elile Adams maintains that Nooksack Tribal Court Chief Judge Ray Dodge and Pro Tem Judge Rajeev Majumdar’s assertion of jurisdiction over for the last five years has been in bad faith. She believes Dodge and Majumdar have harassed her through criminal investigation and prosecution and countless court appearances since 2017, when she first sought domestic violence protection from Dodge.

While they and the court clerks have conspired to deny Elile any opportunity to obtain habeas corpus relief from the Nooksack courts, she has “sought asylum” with the Lummi Nation by taking the extraordinary step of relinquishing Nooksack citizenship and enrolling at Lummi.

In ruling that Elile still must exhaust Nooksack court remedies, the Ninth Circuit was unconcerned that Dodge, Majumdar, and the clerks have sat on her pro se habeas corpus petition for nearly two years, upon the unethical ex parte advice of Nooksack Tribal Attorney and defense lawyer Charles Hurt. 

The Ninth Circuit judges recited but shrugged off that reality along with the following undisputed facts:

Nooksack Tribal Court Chief Judge Dodge and the Nooksack Tribal Court acted in bad faith by: (1) sua sponte initiating a parenting action against her; (2) ignoring a 2015 state court parenting order and its jurisdictional impact; (3) harassing her by requiring her to appear before Dodge at least twenty times in two years; (4) issuing a warrant for her arrest and causing her to be imprisoned because of her failure to appear at a July 11, 2019 hearing despite her public defender’s appearance on her behalf; (5) rejecting her habeas corpus counsel’s appearance before the Tribal Court; and (6) refusing to consider her pro se habeas corpus petition upon the ex parte advice of one of Respondents’ counsel.

The Ninth Circuit’s decision further show the extent to which federal courts are calloused about Indigenous human rights violations in Indian country.

The opinion also reveals the incongruent nature of Indian country domestic violence protection efforts. While at present Congress seeks to strengthen tribal court authority for the protection of Indigenous domestic violence victims like Elile, non-Indian men like Dodge and Majumdar are allowed to violate Indigenous women’s civil rights under the cloak of tribal sovereignty and jurisdiction.

Gabe Galanda Awarded ABA Spirit of Excellence Award

Gabe Galanda, along with George Adams and Nooksack 306 family members, in 2015

The American Bar Association Commission on Racial and Ethnic Diversity in the Profession has named Gabe Galanda a 2022 recipient of the Spirit of Excellence Award.

The National Native American Bar Association nominated Gabe for the prestigious award, calling him “a civil rights warrior.” The award symbolizes the determination of racially and ethnically diverse lawyers who have not only navigated their own path to success but paved the way for those who follow them.

When asked to reflect on the importance of the Spirit of Excellence Awards and promoting a more racially and ethnically diverse legal profession, Gabe said:

Without Indigenous representation in the law, there will never be a guarantee to Indigenous citizens or residents of this country that they will be afforded the human rights protection that everyone else in this country enjoys. So unless there are Indigenous advocates, there will not be Indigenous human rights.

Gabe dedicates his award to the Nooksack 306, a group of Indigenous kinfolk in northern Washington state whose human rights have been violated by tribal political actors for the last decade.

Gabe will be recognized, along with Washington Supreme Court Chief Justice Steven C. González, Kay H. Hodge, Carlos E. Moore and Oregon Supreme Court Justice Adrienne C. Nelson, during a virtual ceremony on Feb. 10 at 3 PM Pacific.

“These awardees have blazed trails and have encouraged and supported others to succeed,” Michelle Behnke, the chair of the commission, said when they were announced in September. “Most importantly, these awardees highlight for the world that diversity, equity and inclusion is not mutually exclusive to excellence, grit and determination.”

Gabe Galanda is an Indigenous rights attorney and the managing lawyer at Galanda Broadman in Seattle. He belongs to the Round Valley Indian Tribes of California, descending from the Nomlaki and Concow Peoples.

At Yale, Gabe Galanda Teaches of Neocolonial Tribal Per-capita and Disenrollment Practices

Gabe Galanda joined an engaged class of Yale Law School students on Wednesday to discuss the “Pros and Cons” of Indian Gaming with Stephen Pevar’s “Contemporary Issues in American Indian Law” class.

Gabe’s presentation focused on the “cons” of Indian gaming, providing a history of Indigenous kinship rules, federal Indian per-capita payments, and tribal disenrollment. His slides are here.

Gabe Galanda is an Indigenous rights attorney and the managing lawyer at Galanda Broadman in Seattle. He belongs to the Round Valley Indian Tribes of California, descending from the Nomlaki and Concow Peoples.

Before Howard Law School, Gabe Galanda Urges Indigenous Indigent Right to Counsel

Gabe Galanda joined Audra Wilson, the president and CEO of the Shriver Poverty Law Center, and Sybil Hadley, the General Counsel at the Southern Poverty Law Center, at the Seventh Annual C. Clyde Ferguson Symposium to discuss:

the complexities of economic support for legal representation and how that tends to manifest for all walks of life-- incarcerated individuals, marginalized communities, and those who need further support against the complex systems in our country that perpetuate poverty.

Gabe focused his remarks on disproportionate rates of Indigenous poverty, criminality, and incarceration and, therefore, the need for an Indigenous indigent right to counsel in Tribal Courts such as that guaranteed in non-tribal courts by the federal 6th Amendment. His slides are here.

Gabe Galanda is an Indigenous rights attorney and the managing lawyer at Galanda Broadman in Seattle. He belongs to the Round Valley Indian Tribes of California, descending from the Nomlaki and Concow Peoples.

In Historic Statement, BIA Pledges to Safeguard Indigenous Individuals' Rights

A weekend USA Today news feature regarding the United States’ recent intercession in the Nooksack housing rights calamity (.pdf here), includes the following historic statement from the BIA:

The federal government must protect the rights of individuals under federal law, including the Indian Civil Rights Act... BIA respects tribal sovereignty and supports tribal self-determination. Accordingly, we seek to work closely with our tribal partners to safeguard the rights of both tribes and individuals.

The BIA’s statement marks the second time the Biden administration has professed a commitment to protecting Indigenous individuals’ human rights from violation by Tribal governments, and a break from modern administrations that focused almost exclusively on supporting Tribal self-determination rights.

USA Today also highlights HUD “Secretary Marcia Fudge's October statement encouraging four Oklahoma tribes to accept descendants of Freedmen who once had been enslaved by the tribes.” Secretary Fudge consulted with Interior before making that statement.

Neither statement would have been issued without the guidance and support of Interior Secretary Deb Haaland or Assistant Secretary—Indian Affairs Bryan Newland. Indigenous representation does matter.

Both the BIA and HUD statements represent historic commitments by the United States to protect Indigenous individuals from domestic human rights abuse by Tribal governments. Both statements reflect the Trustee’s common-law moral trust responsibility to Tribal citizens and descendants. Both statements recognize that in the context of Indigenous human rights, Tribal sovereignty and self-determination are not absolute.

As explained by USA Today:

Galanda, a Seattle lawyer and member of the Round Valley Indian Tribes of California, said earlier Supreme Court decisions call for federal intervention under a "moral trust responsibility."

"The tension lies between tribal self-determination and Indigenous human rights protection in the form of federal diplomatic intercession," he said. "I think there have to be scenarios in which the Indigenous human rights violation is so atrocious and so threatening to an Indigenous community's existence that the (U.S. government) must exercise its moral trust responsibility."

I wholeheartedly applaud the Biden administration, particularly Secretary Haaland and ASIA Newland, for boldly professing a commitment to safeguard Indigenous individuals’ human rights.

Gabe Galanda is an Indigenous rights attorney and the managing lawyer at Galanda Broadman in Seattle. He belongs to the Round Valley Indian Tribes of California, descending from the Nomlaki and Concow Peoples.

The Nooksack 306: "We still belong at Nooksack. We will always belong at Nooksack."

Guest Column By The Nooksack 306

Who are we—the Nooksack 306?

We are 306 Nooksack Indigenous relatives who have faced persecution by politicians running the Nooksack Indian Tribe in Whatcom County of Washington State, since 2012.

While Nooksack politicians claim we were telephonically disenrolled in November 2016, the U.S. Interior Department invalidated the disenrollment that month and U.S. Department of Justice later declared that those politicians "endeavored to unilaterally declare members of this minority group 'disenrolled' using a sham hearing process while also systematically depriving them of the means to challenge the actions . . . in the tribal judicial system." We were also disenrolled despite several Nooksack tribal court injunction orders.

We have never been legally disenrolled. We still belong at Nooksack. We will always belong at Nooksack.

What is disenrollment and why is it destructive?

Disenrollment is a non-traditional, neocolonial tribal practice that is intended to keep tribal politicians in power and concentrate a tribe's wealth within their political base by removing enrolled citizens of their tribal nations who are seen as a "threat" to said power and wealth hoarding. This would be equivalent to the United States revoking your American citizenship because a political leader feels they can gain more power if you don't have rights. Read more about how disenrollment is problematic by clicking here.

Are we the only Indigenous peoples experiencing disenrollment?

No.  There are over 90 U.S.-recognized tribes (15% of all recognized tribes) who have disenrolled as many as 10,000 tribal citizens for power and profit. Disenrollment is allowed to occur because federal and state courts will generally not assert jurisdiction over the deprivation of an Indigenous person's civil rights. As at Nooksack, tribal courts are often beholden to the politicians who are causing the persecution and disenrollment. 

Why are we being persecuted?
Nooksack politicians argue that our ancestor, Annie George, is not Nooksack and her daughters were wrongly enrolled.  Annie George is the daughter of Matsqui, the Chief of the Nooksack Village of Matsqui in British Columbia. The Tribe recognizes Matsqui as a “Nooksack Place Name” in our traditional language Lhéchalosem on its website. 

Nooksack people hail from southern British Columbia and northern Washington State.  A Nooksack chief signed a U.S. Indian Treaty in 1855 but the courts treated us as Canadian Indigenous persons until 1973, when the Tribe was recognized by the U.S.  Our Elders were enrolled in the 1980s. Disenrollment came 40 years later after individuals outside the George lineage felt we were a threat to their political power.

In 2013, Tribal politicians launched a successful political campaign to amend Nooksack constitution in order to eliminate us. They also fired the Chief Judge of the Nooksack Tribal Court who had ruled against them, and installed their white lawyer Ray Dodge as the new Chief Judge to make sure no lawsuit we might file in Tribal Court to prevent our disenrollment would ever be heard.

We are believed to be one of the largest Indigenous families ever subject to disenrollment in the United States. To learn more about our disenrollment, please read this article by The New York Times.  

What issues do we face as disenrolled Indigenous peoples?

Without enrollment, we are denied access to voting, health services, fishing rights, pensions, and scholarship opportunities. We cannot take part in cultural or political activities at Nooksack. Our disenrollment has also led to 63 of us facing eviction from our homes that we own under federally funded home ownership programs.

What changes do we hope to see happen?

We hope that Nooksack politicians will do the right thing and stop this decade-long injustice. If they continue to refuse, we hope that - with our attorney Gabe Galanda - the federal government will determine this to be a civil rights violation. We have also called upon the United Nations to declare this an international human rights atrocity.  We hope that the deprivation of any Indigenous person's civil rights will be prevented.

What can outsiders do to support us?

Allies are invited to follow our Twitter (@Nooksack306) and Facebook (The Nooksack 306). Sharing and retweeting our content helps others learn about us and creates further pressure on the Nooksack tribal government to do the right thing. We also ask for donations to our GoFundMe to support the 63 of us who are being evicted from our homes at Nooksack.

Matt Slovin Explains Cardrooms' New Suit Against Washington Tribal Sports Betting

Maverick Gaming LLC, the owner-operator of 19 Washington cardrooms, sued state and federal officials in D.C. federal court Tuesday, alleging violations of the Indian Gaming Regulatory Act (“IGRA”) and equal protection.

Specifically, Maverick argues that the State of Washington’s gaming compacts illegally give tribes a monopoly over roulette, craps, and sports betting—forms of what IGRA refers to as “class III gaming.” In 2021, the State and 16 tribes amended their compacts to authorize sports betting.

IGRA permits tribes to engage in class III gaming only if “such activities are . . . located in a State that permits such gaming for any purpose by any person, organization, or entity, and conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State . . . that is in effect.”

The crux of Maverick’s argument is that tribes cannot engage in roulette, craps, and sports betting because: (1) Washington does not “permit[] such gaming . . . by any person, organization, or entity” as non-tribal actors cannot participate; and (2) the compact amendments permitting sports betting violate IGRA and other federal law.

 Whether Class III Gaming by Washington Tribes Violates IGRA Because the State Does Not “permit[] such gaming . . . by any person, organization, or entity”

Maverick’s first argument is that the tribes’ “monopoly” on roulette, craps, and sports betting violates IGRA because Washington does not “permit[] such gaming . . . by any person, organization, or entity.” 25 U.S.C. § 2710(d)(1)(B).

Washington law allows tribes to compact to conduct sports wagering. See RCW 9.46.0364. But Maverick alleges that the State criminally prohibits non-tribal entities from participating in sports wagering.

Courts have applied different tests in determining whether certain state gaming activities violate IGRA.

In interpreting § 2710(d)(1)(B), the Eighth Circuit Court of Appeals asked whether state “gaming law is prohibitory or regulatory in nature.” U.S. v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 366 (8th Cir. 1990). If state law prohibits “gambling in general” and the particular activity in question, it violates IGRA to allow a tribe to participate in it. Id. at 368. But if state law merely regulates gambling and the specific activity, there is no IGRA violation. Id. The Second Circuit Court of Appeals has adopted the same test. See Mashantucket Pequot Tribe v. State of Conn., 913 F.2d 1024, 1032 (2d Cir. 1990).

However, the Ninth Circuit Court of Appeals found the statute ambiguous and resolved the ambiguity in favor of tribes under a canon of construction. See Artichoke Joe’s California Grand Casino v. Norton, 353 F.3d 712, 731 (9th Cir. 2003). Thus, the Ninth Circuit held that a state “permits” class III gaming under IGRA even if those activities are only legalized for tribes. Id.

If the U.S. District Court for the District of Columbia adopts the prohibition-regulation dichotomy here, it is possible a judge would find sports betting by tribes in Washington violates IGRA; Maverick has pointed to state law that it reads as prohibiting class III gaming by non-tribal entities. See RCW 9.46.222.

Whether the Compact Amendments Allowing Sports Betting Violate IGRA and Other Federal Law

Maverick alleges the Secretary of the Interior was obligated to disapprove the 2021 compact amendments, which allow tribes to engage in sports betting, for three reasons.

First, as discussed above, Maverick argues the amendments violate IGRA because they purport to authorize class III gaming in a state—Washington—that does not allow non-tribal actors to participate.

Second, Maverick argues the amendments run afoul of the Constitution’s equal protection guarantee through discrimination on the basis of race and ancestry.

Third, Maverick argues that the compact amendments violate the Tenth Amendment because the federal government, through IGRA, required states to negotiate compacts with tribes.

Through the lawsuit, Maverick seeks an order declaring that the compacts and compact amendments violate IGRA, the equal protection clause, the Tenth Amendment, and other federal law.

Matt Slovin is an Associate with Galanda Broadman PLLC. and Harvard Law School graduate. He is a former sports reporter, for MLB.com and The (Nashville) Tennessean.

Governor Inslee Appoints Ryan Dreveskracht to State Criminal Justice Training Commission

On December 14, 2021, Governor Inslee appointed Ryan Dreveskracht to serve as the a Board Member on the Washington State Criminal Justice Training Commission (“CJTC”).

The CJTC was created in 1974 to establish standards and provide training to criminal justice professionals, including peace officers, local corrections officer and to certify, and when necessary de-certify, peace officers. Washington State is one of only a few states that not only establishes training standards, but also provides Basic Training for Peace Officers and Corrections Officers. This unique model ensures that every local officer has consistent and high quality training guided by the CJTC.

On the CJTC Board, Ryan will preside over law enforcement practices and accountability, as provided in RCW 43.101.030(1)(f).

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.

Gabe Galanda, Anthony Broadman to Co-Chair 19th Annual Northwest Gaming Law Summit

Gabe Galanda and Anthony Broadman will co-chair the 19th Annual Northwest Gaming Law Summit at the Washington Athletic Club in Seattle on December 9 and 10, 2021.

The Summit, which remains the most important gaming legal education event in the country, attracts a veritable “who’s who” in the tribal and commercial gaming industries.

Agenda For Thursday, December 9, 2021

9:00 PDT

INTRODUCTION AND OVERVIEW

Anthony S. Broadman, Program Co-Chair
Galanda Broadman PLLC

Gabriel S. Galanda, Program Co-Chair
Galanda Broadman PLLC

David A. Malone, Program Co-Chair
(Live, via Webcast)
Miller Malone & Tellefson

9:10

NATIONAL INDIAN GAMING LITIGATION UPDATE

Review of the major cases decided over the past year regarding the interpretation and implementation of the Indian Gaming Regulatory Act and tribal/state compacts governing tribal gaming operations.

Scott D. Crowell
Crowell Law Office – Tribal Advocacy Group PLLC

9:45

INDIAN GAMING FEDERAL LEGISLATIVE UPDATE

Review of major federal legislative and policy developments over the last year that impact tribal governments and gaming enterprises.

Joshua Clause
Clause Law PLLC

Aurene M. Martin, President
Spirit Rock Consulting, Inc.

10:45

BREAK

11:00

NORTHWEST GAMING STATE LEGISLATIVE UPDATE

Review of major Washington and Oregon state legislative and policy developments over the last year that impact tribal governments and gaming enterprises.

Anthony S. Broadman, Moderator
Galanda Broadman PLLC

Rebecca George, Executive Director
Washington Indian Gaming Association

Justin Martin
Perseverance Strategies, Inc.

Anna Richter Taylor
(Live, via Webcast)
ART Public Affairs

12:15

MIDDAY BREAK

1:30

SECTION 20 LITIGATION & ADMINISTRATIVE UPDATE

Review of cases decided over the past year regarding the interpretation and implementation of Section 20 of the Indian Gaming Regulatory Act.

John A. Maier
Maier Pfeffer Kim Geary & Cohen LLP

Scott Wheat
Wheat Law Offices

2:30

SPECIAL KEYNOTE PRESENTATION: THE STATE OF FEDERAL/TRIBAL GAMING RELATIONS

Update on the Department of the Interior's Federal policy agenda for Indian Country

Bryan Newland, Assistant Secretary
Indian Affairs, U.S. Department of the Interior

3:00

BREAK

3:15

SPECIAL KEYNOTE PRESENTATION: INDIAN GAMING IN 2022

Ernest L. Stevens, Jr., Chairman
National Indian Gaming Association

3:45

INDIAN GAMING POST-PANDEMIC: TRIBAL EXECUTIVE INSIGHTS

Review of how tribal governments and gaming enterprises have responded to the COVID-19 pandemic and adapted for the future.

Rebecca George, Executive Director, Moderator
Washington Indian Gaming Association

Hon. W. Ron Allen, Chairman
Washington Indian Gaming Association

Junior Maldonado, Executive Director
Gaming Operations, Muckleshoot Casino Resort

Laura Penney, Chief Executive Officer
Coeur d’Alene Casino Resort Hotel

5:00

ADJOURN

Agenda For Friday, December 10, 2021

9:00 PDT

INTRODUCTION AND OVERVIEW

Anthony S. Broadman, Program Co-Chair
Galanda Broadman PLLC

Gabriel S. Galanda, Program Co-Chair
Galanda Broadman PLLC

David A. Malone, Program Co-Chair
(Live, via Webcast)
Miller Malone & Tellefson

9:10

SPORTS COMPACT LITIGATION

Review of a recent Florida case and discussion of the potential future application of the Florida model in the Pacific Northwest.

David A. Malone, Moderator
(Live, via Webcast)
Miller Malone & Tellefson

Marc W. Dunbar
(Live, via Webcast)
Dean Mead
Tallahassee, FL

Robert M. Jarvis
(Live, via Webcast)
Professor of Law
Nova Southeastern University
Fort Lauderdale, FL

10:15

BREAK

10:30

SPORTS BETTING – A PANEL DISCUSSION

Review of “brick and mortar” models such as Washington State’s new compact amendments; “mobile” models as in Florida and Colorado; state law-based models as in Michigan, Arizona and Connecticut, and California’s competing ballot measures.

Scott Wheat, Moderator
Wheat Law Offices

Steve M. Bodmer, General Counsel
Pechanga Band of Luiseño Indians

Scott D. Crowell
Crowell Law Office – Tribal Advocacy Group PLLC

Christine M. Masse
Miller Nash LLP

12:00

ADJOURN

Matt Slovin Named to Harvard Law School Alumni Board

Matt Slovin, an Associate for Galanda Broadman PLLC, was recently named to the Executive Board of the Harvard Law School Association's Recent Graduates Network.

The Recent Graduates Network helps to keep those who graduated in the past 10 years connected to the school and its affiliates.

Slovin is a 2019 graduate of Harvard Law School. He will serve a two-year term as co-communications chair.

Matt Slovin is an Associate at Galanda Broadman, PLLC, an Indigenous rights law firm. His practice focuses on Indian civil rights litigation, as well as cases involving tribal governments and enterprises.