The Legality of Tribal Disenrollments: Greed or Growing Pains? (Part 1)

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AUTHOR’S NOTE: This is the first part of a multi-part article that deals with the legality of tribal disenrollments.

If you want to see all of the articles in one PDF, then click here for the link.

To view the entire series, then click on the First Time Here? link, or just click here to go to it.  Look under the “Federal Indian Law” section.

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Introduction

What is disenrollment?  Disenrollment is the end result of a tribal proceeding whereby a particular federally recognized Indian tribe strips an individual tribal member of their status as a Native American with eradication of all rights and privileges that he or she may have previously enjoyed as a member.  In effect, the disenrolled is no longer a Native American.  That in itself is shocking to say the least because most people, even I, have always been led to believe that one’s lineage is unalterable.  When you fill out forms or applications you will sometimes see an optional section of the form dealing with race or ethnicity; one bubble or checkbox will usually say “Native American,” or “American Indian.”  If you are a disenrolled tribal member you can technically no longer check this box.  No person living inside the United States has to worry about such a thing happening to them except Native Americans.

There’s more to being a disenrolled Indian than just loss of ethnic identity.  Disenrolled Indians no longer have access to specially arranged healthcare that, under normal circumstances, they could not have afforded in the first place.  Access to education is substantially impaired as there are many funding sources that are only available to federally recognized Indian students.  In certain cases, the disenrolled are ejected from the tribal grounds and can never return.

The question I’ve asked myself numerous times in writing this article is to whether or not I should actually write it at all because of an unavoidable bias on my part.  I am a federally recognized Native American from a non-gaming tribal nation.  I have not been disenrolled and hopefully that day never comes, however I have heard through personal contacts the drama and disillusion that some disenrolled tribal members have faced when they received news that they were no longer Native Americans.  Thus far it has been one of the most personal subjects that I have researched because of my heritage and because I have seen firsthand the nature of tribal politics.  I have been in rooms where tribal council meetings were held; I have heard the name-calling, the belittling; I have been witness to the decision making process when it comes to important choices regarding Indian artifacts and land.  And I’ve seen the shouting matches.  The news stories and California court cases that I have discovered in researching this article have given me a glimpse of the dark side of tribal sovereignty.  And while I am aware of my bias I must also try to find the other side to what I’m about to say.

To see both sides of an argument is something that law school instills in a student, no matter how difficult it may be to procure one.  Some call the disenrollments and the politics leading up to their execution a policy of greed.  According to an April 20th, 2008 San Francisco Chronicle article, California Indian gaming tribes “are cashing in on the annual $7.7 billion California Indian gambling boom, and some are throwing out many of their own members – all, critics say, so those remaining can pocket more cash.  In many cases, that amounts to monthly allowances of up to $30,000 per person.”  A July 1st, 2004 Native American Law Report article describes an “epidemic” of disenrollment cases flooding California courtrooms due to the “explosion of the Indian casino industry, which has given rise to greater gaming dividends, and thus, they say, greater controversy over tribal membership rolls.”

On the other hand, according to the Chronicle article, tribal leaders of California Indian tribes “contend that the anger over cash and disenrollments is just a growing pain of an industry that has exploded eightfold from $1 billion in 2000″ to the powerhouse it is now.  Also in the article, law professor Carole Goldberg, chair of the UCLA Native Nations Law & Policy Center, said “some of the human drama is being amplified…the tribes concede their sovereign authority if they talk to the non-Indian world, so they don’t say much, which just leaves opponents to do much of the talking.”

This article will cover the specter of tribal disenrollments in the State of California beginning with the tribal sovereignty immunity that protects tribes from lawsuits regarding not only disenrollments but any other suit.  The focus will then shift to the definitive United States Supreme Court case regarding tribal membership, Santa Clara Pueblo v. Martinez, and how that has filtered down into court decisions in California with regards to the failed attack methods used by the disenrolled to combat their ouster.  The article will then close with what the foreseeable future holds for tribal sovereign immunity and the disenrolled.

A Brief History of Tribal Sovereign Immunity

Tribal sovereign immunity (hereafter TSI) is an article in itself; however I will do my best with the subject.  TSI was an accidental creation of the United States Supreme Court.  In Turner v. United States, the Court ruled that Indian tribes were immune from lawsuits.  In that case, members of the Creek Nation destroyed a fence that belonged to a company from which lost profits ensued; the company brought its bills to the tribal council for reimbursement to which they were denied, saying that the tribe was liable.  The Court held:

No such liability existed by the general law. The Creek Nation was recognized by the United States as a distinct political community, with which it made treaties and which within its own territory administered its internal affairs. Like other governments, municipal as well as state, the Creek Nation was free from liability for injuries to persons or property due to mob violence or failure to keep the peace.  (Turner v. United States (1919) 248 U.S. 354, 357 [39 S. Ct. 109;63 L. Ed. 291].)

 

Turner was extended by the Supreme Court in U.S. v. U.S. Fidelity & Guaranty Co. to make tribes immune from suit as well as to allow tribes to be liable in suit only when granted by Congress:

 

…Indian Nations are exempt from suit without Congressional authorization.   It is as though the immunity which was theirs as sovereigns passed to the United States for their benefit, as their tribal properties did.  Possessing this immunity from direct suit, we are of the opinion it possesses a similar immunity from cross-suits…  The desirability for complete settlement of all issues between parties must, we think, yield to the principle of immunity.  The sovereignty possessing immunity should not be compelled to defend against cross-actions away from its own territory or in courts not of its own choice, merely because its debtor was unavailable except outside the jurisdiction of the sovereign’s consent. This reasoning is particularly applicable to Indian Nations with their unusual governmental organization and peculiar problems.  (U.S. v. U.S. Fidelity & Guaranty Co. (1940) 309 U.S. 506, 512 [60 S. Ct. 653; 84 L. Ed. 894].)

Lastly, in Kiowa Tribe v. Manufacturing Tech., Inc., the Supreme Court held:

As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.  To date, our cases have sustained tribal immunity from suit without drawing a distinction based on where the tribal activities occurred.   In one case, a state court had asserted jurisdiction over tribal fishing “both on and off its reservation.”  We held the Tribe’s claim of immunity was “well founded,” though we did not discuss the relevance of where the fishing had taken place.   Nor have we yet drawn a distinction between governmental and commercial activities of a tribe.   Though respondent asks us to confine immunity from suit to transactions on reservations and to governmental activities, our precedents have not drawn these distinctions.  (Kiowa Tribe v. Manufacturing Tech., Inc. (1998) 523 U.S. 751, 754 [118 S. Ct. 1700; 140 L. Ed. 2d 981].)

Thus, Indian tribes are immune from suit unless Congress says they are allowed to be sued.  Another way for tribes to be eligible for suit is for Congress to pass a law of general applicability that applies to all citizens of the United States as well as Indian tribes unless certain exceptions are touched upon such as tribal intramural matters such as membership, or whether the law would abrogate tribal treaty rights with the United States, or if the legislative history of the federal law would specifically indicate that Indian tribes were not meant to be covered.  Examples of such laws that apply to Indian tribes are the Occupational Safety and Health Act (OSHA), the Americans with Disabilities Act (ADA), and the National Labor Relations Act (NLRA).  The third way TSI is waived is if tribes themselves waive it via gaming compacts negotiated with their state (though this waiver is very narrow and specific), arbitration clauses, or choice of law provisions within tribal contracts.  Recently, the California Supreme Court ruled in Agua Caliente Band of Cahuilla Indians v. Superior Court, that states’ rights trump TSI when off-reservation activities, in that case being un-regulated political contributions for California politicians’ election campaigns, interfere with the US Constitution’s Article IV, Section 4 guarantee that every state shall have a republican form of government and its relation to the 10^th Amendment stating that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.”  (Agua Caliente v. Superior Court (2006) 40 Cal.4th 239, 255 [52 Cal.Rptr.3d 659; 148 P.3d 1126].)

As far as disenrolled Indians are concerned, their suits brought into California courts fall on deaf ears because the disenrolling tribes are immune from suit.  Consequently, courts lack the jurisdiction to hear the cases.  Specifically, in Alvarado v. Table Mountain Rancheria, the Ninth Circuit held:

Sovereign immunity limits a federal court’s subject matter jurisdiction over actions brought against a sovereign.  Similarly, tribal immunity precludes subject matter jurisdiction in an action against an Indian tribe.  Yet the absence of immunity does not establish the presence of subject matter jurisdiction.  Rather, the cornerstone of federal subject matter jurisdiction is statutory authorization.  (Alvarado v. Table Mountain Rancheria (9th Cir. 2007) 509 F.3d 1008, 1015.)

Federal courts are courts of limited jurisdiction and as such, subject matter jurisdiction is the power of the court to adjudicate a particular type of claim based only on federal questions or diversity.  Because Indian Tribes are not citizens of any state but domestic, dependent sovereign nations they cannot be brought into federal court under diversity jurisdiction.  This leaves federal question jurisdiction, whether a federal statute gives a private right of action for the grieved party, and as we shall see later, statutes dealing directly with Native Americans are completely useless.  In the case law I will also describe, attempts to convince the courts that they have jurisdiction have met with failure despite legal maneuverings of the disenrolled plaintiffs.

As far as California state courts are concerned, efforts to grant courts jurisdiction over Indian tribes have met with failure as well due to the limitations of Public Law 280, as will be discussed later on.

On top of this, the Supreme Court has carved out a special niche decision regarding tribal membership that has been used by courts, alongside TSI case law, to decline review of disenrollment procedures enacted against disenrolled Indians by their tribal governments.  This case, Santa Clara Pueblo v. Martinez, is the definitive statement of law concerning tribal membership issues.  It is to this case that we will turn to in the next article.

Proceed to Part 2.

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