Category Archives: tribal disenrollment
I don’t know how difficult it is to get raw, objective data on this answer but the blog, Original Pechanga, has given us a guess: $500 million dollars.
The blog keeps contact with many disenrolled Indians from several tribes and based on their former monthly payments from their former tribes’ casinos multiplied by the amount of months they’ve been disenrolled.
Another story appeared about the disenrollment of King Freeman and eight of his family members that I talked about a while back.
No big surprise, the disenrollment was based on a personal grudge: http://www.nctimes.com/news/local/sdcounty/article_061c2929-ac32-5049-94ac-bc53ce6fe612.html
The thing that gets me is that tribes still use blood quantums. Why anyone would want to trust an outdated method to determine who is or isn’t Indian has never made sense to me. Maybe some could point me to some scholarly literature or critical analysis on why this method is still used.
Errors and conflicting information in the documents over the years have led to decades-old disputes among many tribes. Ousted members say those errors, omissions and missing information have been used to remove individuals for political and financial reasons.
There’s always a trouble with documents when it comes to proving Indian descendency. It’s funny how this didn’t stop anyone from maintaining their tribal membership until after the Indian Gaming Regulatory Act was passed.
A former chairman of the Pala Band of Mission Indians was disenrolled from his tribe, effectively ending his political existence as a Native American.
As is usual in Indian Gaming Country, the reasons for his disenrollment were over “heritage” disputes. In this particular case, there was a blood quantum provision involved. Why tribal officials arbitrarily elected to hold off on checking his blood quantum status until after 19 years of service as chairman is beyond me. The fact that anyone waited to check his heritage, or that of his family’s, for so long (or the decades previous) is interesting is well.
It’s not every day you see the Ninth Circuit hand down an Indian law decision, let alone one dealing with tribal disenrollment. This blog’s particular attention to tribal disenrollment is well documented, so when I see a new case talking about this subject I am all over it.
The case in question is Jeffredo v. Macarro, — F.3d —, 2009 WL 4912143 (9th Cir. 2009). (To read the full opinion, see: http://blogs.findlaw.com/ninth_circuit/2009/12/jeffredo-v-macarro-no-08-55037.html)
For a full analysis, click here; below is a summary of the decision.
The Appellants, several members of the Pechanga Band of the Luiseno Mission Indians (“Pechanga Tribe”), were disenrolled for failing to prove their lineal descent as members of the Tribe. Pursuant to the Pechanga Tribe’s constitution and bylaws, the Enrollment Committee investigated the Appellants because they “received information from its members alleging [the Appellants] were not lineal descendents from the original Pechanga Temecula people.” Jeffredo at *1. The Appellants were disenrolled after they failed to make the necessary showing that they were descended from a particular Indian ancestor and were disenrolled on March 16, 2006. Id. at *2-3. The Appellants exercised their right to appeal the decision to the Tribal Council; however, they affirmed the Enrollment Committee’s decision. Id. at *3. As a result of their disenrollment, the Appellants were denied access to the tribe’s Senior Citizens’ Center, health clinic, and their children could no longer attend the tribe’s school. Id. at *4.
The Appellants obtained counsel (no lawyers are permitted to represent tribal members during disenrollment proceedings according to the Pechanga Tribe’s constitution). Appellants’ counsel filed a petition for writ of habeas corpus under the Indian Civil Rights Act, 28 U.S.C. §§ 1301 – 1303 (“ICRA”). Id. at *3. The Appellants’ theory of recovery was that “their disenrollment by members of the [Tribal Council] was tantamount to unlawful detention.” Id. at *1. Specifically, the Appellants argued that “(1) the [effect of the disenrollment’s] actual restraints, (2) the [effect of the disenrollment’s] potential restraints, and (3) their lost Pechanga identity all amount to detention under [the Indian Civil Rights Act].” Id. at *4. Also, the Appellants argued that disenrollment was the same as banishment, and that this was analogous to unlawful detention. Id. at *6.
The Jeffredo Rule Set
The Ninth Circuit has laid out a rule set to determine whether or not a District Court has subject matter jurisdiction to hear a disenrolled Indian’s petition for writ of habeas corpus under ICRA:
- The disenrolled petitioner must be in custody; AND
- The disenrolled petitioner must first exhaust tribal remedies; AND
- The disenrollment proceedings must be criminal and not civil.
A failure to meet any requirement deprives a court of subject matter jurisdiction. See Id. at *4. With these rules in mind, the Ninth Circuit proceeds to affirm the Appellants’ disenrollment.
Before analyzing the facts of the Appellants’ case, the Ninth Circuit covered a basic principle of Indian law. It cited Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), and Cherokee Intermarriage Cases, 203 U.S. 706 (1906), in stating that “[a] tribe’s rights to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.” Santa Clara Pueblo, 436 U.S. at 72 n.32.
The Ninth Circuit ruled that disenrollment is not considered custody under the Indian Civil Rights Act. The Appellants’ disenrollment was not actual custody because being denied access to certain tribal facilities was not severe enough. The Appellants’ disenrollments were also not considered custody because the disenrollment’s potential threat of future detainment was neither severe nor immediate enough. The most interesting and creative argument that the Appellants’ counsel made was that the loss of tribal identity itself was severe enough to constitute as detention under ICRA.
While the Court had “the most sympathy,” for the reality that disenrolling Appellants effectively terminated their political existence as Native Americans, there was no “precedent for the proposition that disenrollment alone is sufficient to be considered detention under [the Indian Civil Rights Act.]” Id. Santa Clara Pueblo’s precedent cannot be ignored by courts in order to give federal courts jurisdiction to hear disenrollment proceedings, nor can the Court expand the “scope of the writ of habeas corpus to cover the exact same subject matter.” Jeffredo. at *5-6. The legislative history behind the Indian Civil Rights Act’s habeas remedy does not support the granting of subject matter jurisdiction to federal courts to review disenrollment proceedings. Id. at *6.
Also, the Appellants’ failed to exhaust their remedies with regards to their claim that disenrollment constituted banishment, and thus making the argument that disenrollment was equivalent to custody. Because of the Appellants’ failure to bring this claim at the tribal level, the Ninth Circuit declined to analyze this issue. The dissent noted that this conclusion was in error because the Appellants were “not asserting jurisdiction based on any exclusion or eviction from the Pechanga Reservation[, but rather], Appellants’ claim of jurisdiction . . . based on the restraints on their liberty arising from being disenrolled and threatened with exclusion.” Id. at * 12.
The Ninth Circuit also ruled that disenrollment proceedings were not criminal in nature, but were civil and therefore, the Appellants’ failed to establish the third prong of the rule set outlined at the beginning of the case. The Court felt that a broad interpretation of the ICRA habeas remedy would be “inconsistent with the principle of broad, unreviewable tribal sovereignty in all but criminal cases involving physical detention.” Id. at *7. Furthermore, courts give great deference to tribes concerning matters of enrollment and tribal membership because of “the often vast gulf between tribal traditions and those with which federal courts are more intimately familiar,” and that “the judiciary should not rush to create causes of action that would intrude on these delicate matters.” Id. (citing Santa Clara Pueblo, 436 U.S. at 72 n.32).
Based on the above holding, the Appellants’ disenrollment was affirmed.
As the Original Pechanga Blog notes: “The group can seek to have Tuesday’s decision re-heard by a larger group of 9th Circuit judges. They can ultimately appeal the case to the U.S. Supreme Court.” Off hand, I don’t know how successful appellants are in being granted a full en banc hearing, or whether the cost of bringing a lawsuit further into appellate court would discourage such petitions, but this could be an option. As for the Supreme Court, I have a good feeling the Roberts-lead SCOTUS will flush this case either through denying certiorari or affirming the Ninth Circuit without comment. Granting cert wouldn’t inspire me with much hope either since a published decision would reinforce already stagnant (and inherently racist) law, but would extend such law into the area of disenrollment.
All in all, the Ninth Circuit’s ruling is not very surprising other than it being published. Is it fair? No. Not in the slightest. As the dissent points out, Pechanga’s disenrollment procedures were never used on a large scale “until recently, when the Tribe’s casino profits became a major source of revenue,” and “every adult Pechangan received a per capita benefit of over $250,000 per year.” Jeffredo, — F.3d —, *8 & *8 n.1 (Wilken, J., dissenting). What the Jeffredo decision illustrates is the clear lack of any Indian’s Constitutional rights to procedural due process in the United States. Indians are Americans too, and all Americans have basic rights to life, liberty and property. What could be more detrimental to an Indians’ liberty interest than their loss of tribal identity? No court of law can ever grant a good decision to a disenrolled Indian so long as they follow Santa Clara Pueblo‘s precedent that Indian membership can only be handled by Indians only.
The dissent makes the clear analogy between disenrollment and denaturalization, and using denaturalization as a form of punishment is:
[M]ore primitive than torture, for it destroys for the individual the political existence that was centuries in the development. . . . This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people[.] It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.
I’ve finally gotten around to collecting all the articles I’ve written on disenrollment into one PDF document.
It is available for download here: TribalDisenrollments.pdf
Took me long enough, right? Thanks for your patience!
Bias & Background
In writing these articles the first challenge I ran into was whether to write them at all; the methods by which tribes have used to expel members has been questionable and on the surface, downright despicable. I struggled hard to come up with a counter argument, one that would allow me to step into the shoes of those performing the disenrolling, to give disenrolling gaming tribes the benefit of the doubt and see both sides of the issue. I think the only real success that came of these efforts is that I just made the effort. Whether or not the counter arguments those efforts engendered are persuasive or not is another story. But looking back at these articles I knew I had the right idea in writing them because I was simply curious as to how this issue has been playing out in California courts. I didn’t always like what I found but my curiosity has been satisfied.
Furthermore, one thing that I must point out is my own bias. I want you to know where my opinions come from so you know that I’m just another person with an opinion on tribal disenrollments; here’s the research that I’ve done and these are my conclusions, but they do not have to be your own. I want you to think for yourself, whether what I’ve seen through my eyes is right or wrong when viewed through yours and if so, then why? Or why not? Above all, I want you to know my stance on this issue so it can provoke your own thoughts and research so that you might inform yourselves on what’s going on. If there’s an argument that I’m not making then what is it?
So, here are my biases:
I’m a capitalist. I love the idea of living in a country where you can go from rags to riches; all you need is determination and a strong work ethic. I think that the idea of having a free market capitalist system is one of the requisites of sustaining a democracy. I love the idea of having a group of people who’ve known poverty all their lives could suddenly get together with nothing but an idea, hope, hard work and make their world better. Indian gaming didn’t just appear overnight. It started out as small bingo hall operations or card rooms in places off the beaten track, off the main roads where people would just go to play games. Look where it went. I love knowing that kind of thing can happen in America. I think it’s what America is all about and who better to cash in on the American Dream than the First Americans themselves? Isn’t it about time? After all the stereotypes in a million cowboy and Indian movies, all the sports mascots that demeaned rather than honor, after living hard lives on a reservation with little to no basic necessities, and now Indian people can have their chance to earn a little bit for themselves. Only in America.
I am of Native American descent. My people were Ah-Wah-Nee-Chee, the First People that lived in Yosemite Valley back when it was called Ah-Wah-Nee. The Ah-Wah-Nee-Chee were a mix of Paiute and possibly Mono Indians who came over to Yosemite from the areas that straddle the California and Nevada border. In the late 19th Century, the last leader of the people, Ten-ie-ya (Tenaya), resisted white domination as best he could but was ultimately unsuccessful. He and his people were forced out by the Mariposa Battalion and made to live in reservations. One day he returned along with his people but by then the State of California had asserted its guardianship over the tourist attraction that Yosemite was quickly becoming, all the way up until the National Park Service assumed responsibility. Since this time Tenaya’s descendents have struggled to gain federal recognition and those descendents are scattered about different groups, each with their own opinions, viewpoints, agendas, and strategies. Each group or faction has not been cordial with others; as you can imagine, numerous fights have broken out over the greater part of the 20th century and 21st century as to who really is a Yosemite Indian and who isn’t. I’ve seen firsthand the meetings where different sides of my family have fought and bickered with each other. I’ve learned that Indian politics is family politics, and if you’re familiar with just how dysfunctional a family can be you can guess just how mature a tribal government can act. Sometimes there’s outright name calling, threatening, and belittling. I have seen these things within my own people and while I have not personally seen these things with other Indian nations I can take a pretty good guess and say that Indian politics is the same wherever you go. If you and your family are not liked by another family, and that family is in control of the tribal council then your life is going to get complicated real fast. It doesn’t sound like conduct fit for the operation of a small government.
Now, add a multi-billion dollar enterprise into this mix. Add in a sudden influx of money into an area that for the last 100 years has seen nothing but poverty. No running water, no electricity, no standardized housing, no jobs, substandard health care, little to no scholarship money for Indian students, no cars – no future. Indian gaming came along at the perfect time.
I understand history: to the victor go the spoils; the weak suffer the strong, etc. We were a conquered people and our lives were dictated by those that conquered us. We weren’t treated fairly; we were targets for extinction and then moods shifted and they wanted to “re-organize” us into mini-republics to promote self-reliance, and then the mood shifted again when they wanted to set us “free” by terminating our ward status and making us go out into world that we were never prepared for, and now it’s back to self-reliance even if only somewhat. I understand the history and I understand why it had to be that way; I never agreed with it, I think it was unfair and genocidal in some places but I understand. But I also understand that what goes around comes around. The people that were never thought to amount to anything, these former “savages” would get organized enough to come up with a way to make their people rich, to stop the poverty and Indian gaming did just that.
I support Indian gaming and I support tribal sovereignty, but there is a terrible irony that has attached itself to both concepts.
Greed or Growing Pains?
So, greed or growing pains? How about both? I present to you the clearest expression of my opinion on this matter with all the research I’ve conducted and the things that I’ve seen coming out of Indian Country. Indian tribes who use gaming as a means of self-reliance in a negative way towards their own people are suffering growing pains because their greed is making them grow into something that these Indians were not before. They are growing into tyrants.
Tyranny is not only a strong word but it’s also overused, so my use of it here hopefully has some resonance because by now, if you’ve read the articles, then you know that I wouldn’t use it carelessly. Also know that tyranny comes in degrees; you can have a lesser tyrant or perhaps even a benign one but you can also have great tyrants depending upon how much power is wielded and how that power is executed. I believe that gaming tribes that have disenrolled their own for the sake of higher gaming revenue allotments have acted tyrannically; the degree of tyranny is yet to be adjudged but I think we can agree that disenrollment under those reasons requires some minimum standard of autocracy.
The case for greed is well developed by now. Almost every disenrolled Indian that has been interviewed has lobbied this opinion. The legal community is also aware of the attitude. Previously, in Lamere v. Superior Court, the presiding judge remarked: “Where large sums of money are involved, however, it has long been recognized that the potential for corruption always exists.” (Lamere v. Superior Court (2005) 131 Cal.App.4th 1059, 1068, fn. 10 [31 Cal.Rptr. 3d 880].) Reaching back to Santa Clara Pueblo, Justice White noted in his dissent:
[A witness before the Senate Subcommittee concerning the Indian Civil Rights Act] complained “[the] people get governors and sometimes they get power hungry and then the people have no rights at all,” to which Senator Ervin responded: “‘Power hungry’ is a pretty good shorthand statement to show why the people of the United States drew up a Constitution. They wanted to compel their rulers to stay within the bounds of that Constitution and not let that hunger for power carry them outside it.” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 81 [98 S.Ct. 1670, 56 L.Ed.2d 106] (dis. Opn. of White, J.).)
The case for growing pains is less developed. On March 2nd, 2009 I came across news that the Chukchansi Indians who ran the Chukchansi Gold Casino were disenrolling hundreds of members. When reading the article I came across the reasons behind the disenrollment:
[The issue of disenrollments] is already tearing our tribe apart. Should we take the path of summarily disenrolling members from our Tribe, our Tribe could become the example of greed that gaming has engendered from coast to coast. This kind of press directly affects our Casino business, and contributes to the already significant backlash against Indian gaming in California and across the U.S…
Instead let’s practice the traditions of our people: respect, restraint and generosity in unraveling years of poor enrollment practices so that all people of Chukchansi blood are dealt with fairly.
What “poor enrollment practices” has to do with ancient Indian customs that predate modern, BIA imposed enrollment regulations is beyond this author. A sharper quote comes from a Chukchansi council member: “We didn’t disenroll anybody. We just corrected our paperwork.” (Fagan, Tribes Toss Out Members in High-Stakes Conflict, S.F. Chronicle (Apr. 20, 2008), p. A1.) This issue is dealt with in depth in the article that I wrote on the subject.
And then there’s Carol Goldberg’s quote: “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.” I can’t completely disagree with this conclusion. As you’ve noted from these articles, tribal sovereign immunity is a precarious theory, resting upon thin ice, its very survival uninsured from judicial review or congressional abrogation. Creative attorneys look for anything and everything they can use to make the case that an Indian tribe has voluntarily conceded its immunity from suit. As legal advice, keeping quiet is the best practice. Furthermore, Indian tribes don’t have to say anything at all, not because it’s good for maintaining sovereign immunity, but because they simply don’t have to. No one other than Congress has any authority to foist liability on an Indian tribe. Tribes can effectively scoff at any request by local and state governments for anything from consent to be sued, cooperation with state law, serve an arrest warrant, or tax their cigarettes. Aside from exceptions such as gaming compacts with the state, tribes are sovereign nations even if just “dependent domestic” ones and do not have to talk to anyone if they don’t want to.
That said, silence isn’t always golden. An explanation for actions concerning tribal disenrollments after major influxes of cash is more than necessary at this point, and we are in need for something beyond redressing prior enrollment problems or correcting the paperwork. There’s a fundamental violation of due process that may be taking place in Indian Country and it’s being perpetuated against Indians by Indians. The basis for disenrollment sometimes amount to no more than a rumors concerning the disenrolled’s family ancestry. Sometimes it could just be simple mathmatics: the less people in the tribe, the more money for everyone else – what we see in the news are excuses that cloak the underlying unfairness. Why should the United States tolerate such a gross violation of basic rights to American citizens? The answer seems so simple but as you can see from the underlying legal theories, Indian Country and Indians themselves are legal curiosities; sometimes the laws of our country apply and sometimes they don’t. However, in the situation of the disenrolled, an explanation of tribal council behavior would be nice. If a tribe is worried about waiving its immunity by explaining its actions then it should be more concerned about leaving their “opponents to do much of the talking” than keeping quiet, because those opponents are seeking redress to the one authoritative body that can do something about the problem. That body is the United States Congress. Whether an explanation of this magnitude would constitute a waiver is mildly ambiguous and fundamentally, (and ironically to some) an explanation for a tribe’s actions may actually mitigate their loss of social currency.
In the end, I leave the reader to decide whether Indian nations have conducted themselves properly. The amount of materials that can be found on the issue of tribal disenrollment are far vaster than what was cited in this article. Indeed, many of the best sources on this issue are the comments that Indians themselves have left on my articles. Those are the real stories of substance and they can provide much more profound insight than I could with just citations to news articles and court cases. It also to them that I dedicate these series of articles along with my best wishes on one day being inducted back into their tribal nations of origin.
If there are any true solutions to be found to this issue then they will not come from an American courtroom. Courts are bound to follow the principle of stare decisis, and will thus uphold court cases that have gone before them – court cases that have cast Indians in a subordinate role in American society. If there is a solution to be had it would have to come from Congress:
…tribes have been given broad power to order their own affairs without regard for Eurocentric mores. To the extent that Congress has not chosen to provide an effective external means of enforcement for the rights of tribal members, the omission is for Congress to reconsider if and when it chooses. (Lamere v. Superior Court, supra, 131 Cal.App.4th 1059, 1063, fn. 2.)
I support Indian gaming. It is probably one of the most genius ideas that the Native Americans ever conceived to lift themselves out of poverty. With casino revenue rolling in tribes are now in a position to provide for themselves in a way never thought possible. I just don’t see how disenrollments serve that purpose.
These articles are at their conclusion. As stated previously, was I right in my conclusion? Wrong? Both? Why? Why not? Do you think this issue is worthy of further research on your part? Have you already done more research? What did that lead you to? Never stop asking questions about how you perceive an issue and how you conclude on an issue. If you live your life questioning the things around you, you will never stop learning and you will always grow. I hope this is a lifestyle you find worth copying.
Thank you for your time.
TABLE OF AUTHORITIES
Tribal Sovereign Immunity
Turner v. United States (1919) 248 U.S. 354
U.S. v. U.S. Fidelity & Guaranty Co. (1940) 309 U.S. 506
Kiowa Tribe v. Manufacturing Tech., Inc. (1998) 523 U.S. 751
Lack of Subject Matter Jurisdiction
Alvarado v. Table Mountain Rancheria (9th Cir. 2007) 509 F.3d 1008
TSI & Tribal Membership
Santa Clara Pueblo v. Martinez (1978 ) 436 U.S. 49
California State Judicial Interpretation of the Indian Civil Rights Act & PL 280
Bryan v. Itasca County (1976) 426 U.S. 373 – PL 280 generally but applied to disenrollments by Ackerman
Ackerman v. Edwards (2004) 121 Cal.App.4th 946
Lamere v. Superior Court (2005) 131 Cal.App.4th 1059
Federal Judicial Interpretation of the Indian Civil Rights Act
Poodry v. Tonawanda Band of Seneca Indians (2d Cir. 1996) 85 F.3d 874
Quair v. Sisco (9th Cir. 2004) 359 F.Supp.2d 948
Public Law 280 (28 U.S.C. §1360) – Civil Jurisdiction
Public Law 280 (18 U.S.C. §1162) – Criminal Jurisdiction
Law Student Resources
“A mind once stretched by a new idea never regains its original dimensions.” — Anonymous