Previously…

In the last article, we began by introducing the concept of tribal disenrollment within California Indian Country.  Being disenrolled means being ousted from the membership of the Indian tribe with no legal recourse to reverse such a decision.  With that membership status taken away disenrolled Indians are bereft of their share of any gaming revenue or any other benefits given to them via treaty or arrangement often including access to healthcare and education.  With the exploding growth of Indian gaming throughout the United States, as well as California, the pattern of behavior that many have seen is that when there are less members in the Indian tribe that owns the casino the more profit there is to go around.  However, the counter point from the last article is this:

On the other hand, according to [an April 20th, 2008 San Francisco 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.”

The last article explored the concept of tribal sovereignty immunity, the legal doctrine that allows tribes to be immune from suit unless Congress has authorized it or whether the tribes themselves have waived it through various means; or, lastly, whether Congress has abrogated that immunity via a law of general applicability.  Because of this immunity courts often lack the subject matter jurisdiction to hear the cases of the disenrolled.  Aside from the broad powers given by tribal sovereign immunity one United States Supreme Court case above all essentially left the matters of tribal membership up to the tribes themselves – to the exclusion of all others.  That case will be examined now.

Santa Clara Pueblo v. Martinez

On May 15th, 1978 the United States Supreme Court filed its decision in Santa Clara Pueblo et. al. v. Martinez et. al.  It all began over a tribal ordinance that a child born to a female member of the tribe and a non-member male will not be considered a member of the tribe.  Conversely, a child born to a male member of a tribe and a non-member female will be considered a member of the tribe.  A female member of the tribe married outside of the tribe and had a daughter; consequently, the daughter was not considered a member of the tribe.  Though raised on the reservation and at the time of the decision still continued to live there, “as a result of their exclusion from membership they may not vote in tribal elections or hold secular office in the tribe; moreover, they have no right to remain on the reservation in the event of their mother’s death, or to inherit their mother’s home or her possessory interests in the communal lands.”  (Santa Clara Pueblo v. Martinez (1978 ) 436 U.S. 49, 53 [98 S. Ct. 1670; 56 L. Ed. 2d 106].)

After unsuccessful attempts to combat the tribal ordinance in question, the plaintiffs took their case to federal court, pleading a cause of action under the Indian Civil Rights Act (28 U.S.C. §1301 – §1303).  The case wound its way up the federal court system until finally landing in the Supreme Court’s lap.  This case is extremely important in matters concerning tribal membership and has many things to say.  In my California case law research concerning membership and enrollment, the following portion of the opinion is the most heavily cited:

Indian tribes are distinct, independent, political communities, retaining their original natural rights in matters of local self-government.  Although no longer possessed of the full attributes of sovereignty they remain a separate people, with the power of regulating their internal and social relations (i.e. membership, inheritance rules, and domestic relations.)  They have the power to make their own substantive law in internal matters and to enforce that law in their own forums.  As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.  (Id. at p. 55.)

Further into the opinion, the Court also re-affirmed its commitment to recognize tribes’ sovereign immunity from suit and re-affirmed U.S. Fidelity & Guaranty Co. by stating “without congressional authorization, the Indian Nations are exempt from suit.”  (Id. at p. 58.)  In the end, the Court found that no private right of action existed for the plaintiffs under the Indian Civil Rights Act, and further held in a footnote:

A tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.  Given the vast gulf between tribal traditions and those with which federal courts are more intimately familiar, the judiciary should not rush to create causes of action that would intrude on these delicate matters.  (Id. at p. 72.)

And with that, the Supreme Court left issues concerning membership solely within the hands of the tribal governments and not the jurisdiction of the courts.  It also gave me the clearest indication that the Indian Civil Rights Act was largely useless in many ways, the least of which to the plight of disenrolled Indians (as will be discussed below).  In adopting a hands-off, “none of our business” attitude, the Supreme Court has left disenrolled Indians to seek relief for their disenrollment at the very same tribal government that got rid of them in the first place – a fact that Justice White noted in his dissent:

Given Congress’ concern [in reviewing the legislative history of the ICRA] about the deprivations of Indian rights by tribal authorities, I cannot believe, as does the majority, that it desired the enforcement of these rights to be left up to the very tribal authorities alleged to have violated them.  To suggest that this tribal body is the appropriate forum for the adjudication of alleged violations of the ICRA is to ignore both reality and Congress’ desire to provide a means of redress to Indians aggrieved by their tribal leaders.  (Id. at p. 82.)

Disenrolling Indians from their tribal roll lists is a function of tribal government and those that are disenrolled are barred from bringing suit not only on the basis of TSI in general, but because each tribe has its sovereign power to determine membership in whatever manner they see fit.  If, for example, Picayune Rancheria, who are the owners and operators of the Chukchansi Gold Casino in Coarsegold, California, decide to disenroll half of its membership then they can do so according to their tribal constitution regardless if there was procedural “due process” given to the disenrolled beforehand.  Picayune did, in fact, disenroll half its membership in 2007.  According to the Chronicle article, in the year 2000 that membership was composed of 1,500 individuals and is viewed by some as the biggest disenrollment in California history.

To be fair, however, the Santa Clara Pueblo decision does protect tribes’ rights to handle their members’ affairs.  When the Supreme Court backed away from dealing with tribal membership it essentially kept states and federal courts out as well.  In California, however, where Indian gaming related disenrollments are the most prevalent (over 4,000 approximately disenrolled thus far, according to the Chronicle article), Santa Clara is very much a double-edged sword.

Santa Clara Pueblo also highlights an attempt by Indians to find a remedy for membership related issues.  In Santa Clara, that attempt was to find a private right of action through the Indian Civil Rights Act; in California, concerning disenrollment cases where Santa Clara Pueblo was extended, Public Law 280 was also used to attempt to give courts jurisdiction to hear the cases.  As we will see in the next article, the Indian Civil Rights Act was not the only means used by Indians to fight their disenrollments.  The next article will highlight their failures.

Back to Part 1.  Proceed to Part 3.