First, the Nooksack tribal council gave itself the power to disbar attorneys. Then it disbarred its biggest foe, Gabriel Galanda. As a judge reviews whether the action was fair, the case is shaping up to be a test of judicial independence in the tribal system.
On Feb. 24, the Nooksack tribal council gave itself the power to disbar attorneys. It might seem a curious move. Both inside and outside Indian country, that power is usually vested in courts and bar associations.
But the council soon made its motive clear. At the very same meeting, the council voted to disbar its biggest foe: Gabriel Galanda.
The Native American attorney, with offices in Seattle’s Wedgwood neighborhood, has been fighting for three years to prevent the tribe from kicking out 306 members whose lineage is in dispute. In the process, he has become a nationally known opponent of tribal disenrollment, an increasing trend in recent years amid fights over money and power.
Days before the council made its move, he had won a victory in the Nooksack Tribal Court allowing his clients to vote in tribal elections.
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“It seemed like a strategic tactic to get him out of the court system,” said Carmen Tageant, one of two dissident council members who voted against disbarment.
She said she was told that Galanda lacked a tribal business license requiring a $100 fee. Yet, she said, the tribal government has no process for issuing such a license.
In a later interview, tribal Chairman Bob Kelly claimed that Galanda has committed “serious ethical violations” and “misrepresentations,” but declined for the most part to elaborate.
“When we decide the time is right, we’ll tell the story,” he said.
In the meantime, Nooksack Judge Susan Alexander is reviewing whether Galanda received due process.
Galanda says he had no notice of the disbarment or the reasons for it, and is threatening to sue the tribe’s attorneys for defamation.
The stakes are high: He and his colleagues at his firm, also disbarred by the Nooksack, conceivably face disbarment in Washington state, among other places where they practice, because disciplinary action in one jurisdiction triggers disciplinary inquiries elsewhere.
It is a case that is shaping up to be a test of judicial independence.
“This judge has worked in Indian country for more than 20 years and is well aware that the separation between the tribal executive/legislative branch and the tribal judicial branch is sometimes razor thin,” Alexander wrote in an order last week requiring the tribal council to show what due process it afforded Galanda.
The judge noted that she is “simply a tribal employee, without a term or contract.” Nevertheless, she said, “it is essential to maintain separation.”
Kelly seems to have a different view. Tageant recalled the chairman saying that if the judge rules against the council, he would get rid of her.
Political interference with the courts has always been a concern in Indian country, according to Bob Anderson, director of the University of Washington’s Native American Law Center. “That’s why there’s been a move toward a Westernized system,” complete with separation of powers, he said.
Still, that varies from tribe to tribe. Some tribes have systems that look very much like federal or state courts, said Eric Eberhard, distinguished Indian law practitioner in residence at Seattle University. Others operate what he calls a “hybrid system,” where council members may act as judges.
Those appearing before the court might or might not have to be lawyers.
There’s one consistency, Eberhard said: When lawyers or other advocates are disciplined, “There’d be notice and an opportunity to be heard.” Eberhard called the Nooksack attempt at instant disbarment “extraordinary.”
Kelly, the tribal chairman, cited only one specific allegation against Galanda. It concerns a case involving a judge who sued after being fired by the Quinault Nation on the Olympic Peninsula. Galanda, then acting as a pro-tem judge for the Quinault, heard the case.
He dismissed former judge Lee Schlender’s claims for financial damages, noting that the Quinault had sovereign immunity, a cherished principle for many tribes, freeing them from treasury-depleting lawsuits. But Galanda went on to note that a well-known exception to this immunity allowed Schlender to sue, if he wanted, in order to reverse the harm allegedly committed.
In an email, Kelly said Schlender decided against doing so because the former judge recognized the “destructive effect” Galanda’s ruling would have on Quinault law, presumably by weakening sovereign immunity.
Schlender, now a medical malpractice attorney in Idaho, gives a different reason. “I had better things to do with my time,” he said.
But Kelly’s faultfinding doesn’t stop there. He suggested that Galanda acted improperly by later citing his own ruling in the Schlender case while arguing on behalf of the “Nooksack 306,” as they’ve become known.
Galanda — who calls the attack a “transparent ploy” to delay a tribal council election that had been scheduled for this week but is now indefinitely postponed — said there’s nothing in attorneys’ rules of professional conduct that prevents this kind of self-citation.
If Galanda cited himself while he was a sitting judge in the same court in which he was arguing a case, that would be different, said John Strait, a Seattle University law professor who specializes in ethics. Then, Galanda might be exploiting his relationship with judges he sat beside, Strait said.
That was not the case.
Seattle University’s Eberhard, who knows Galanda, says he finds it hard to believe that the lawyer would act unethically. “That’s not Gabe,” he said. “I can see Gabe being a very determined advocate for his client, and that might rankle some people.”
Indeed, Galanda has used every means at his disposal to fight the attempted disenrollment of his clients, and to rail against the practice generally. In addition to perpetuating a fusillade of legal motions, he has aggressively used social media to speak out, and urged other Native American leaders to do the same.
Last month, he helped launch a “stop disenrollment” campaign featuring photos of prominent Native Americans with slogans written on their hands. His said “fascism,” with a slash through it.
He’s not the only one using heated rhetoric as this battle wears on. Tageant, the dissident council member now facing a recall petition launched by her colleagues, said she feels like she’s living in a “dictatorship.”
“We need help,” she said.
In early March, the tribe suspended benefits for elders targeted for disenrollment, including a daily free meal at the tribe’s casino. The tribe also moved to disenroll 40 more people, according to the council member.
It’s unclear how they, or the “Nooksack 306,” will defend themselves. While Galanda is continuing to represent the 306 in an appeal to the federal Interior Board of Indian Appeals, he is, as of now, forbidden to work on Nooksack land.