The Southern District of California dismissed an action by several disenrolled members of the Pala Indian tribe in Allen v. Smith (link to TurtleTalk for court documents). The tribal defendants filed a motion to dismiss on the basis of sovereign immunity, as is typical in these membership actions. What sets this decision apart from your garden variety disenrollment dismissal is the first apparent decision regarding the individual/official capacity distinction that was referenced in this opinion. And for that, we need to back up and explain things a little.
The Maxwell Decision
This time, plaintiffs attempted to make use of a new 9th Circuit case, Maxwell v. County of San Diego (link to Ninth Circuit for published opinion) to sue tribal officers in their individual capacity rather than the tribe itself. In most sovereign immunity cases involving state and local governments, when a public officer is sued it makes a difference whether that person is sued in their individual or official capacity. To keep it brief, official capacity suits are no different than suing the sovereign entity itself because if the plaintiff wins, then the money is paid by the entity. However, when officials are sued in their official capacity, they are entitled to assert sovereign immunity as a defense to the plaintiff’s claim so long as they can show they were operating within the scope of their official authority. Individual suits, on the other hand, target only the public official for his own actions and do not seek relief from the entity, but from the individual.
In Maxwell, family members of a shooting victim brought an action in federal court against a tribal fire department and its paramedics, alleging that the individual paramedics unreasonably delayed in obtaining medical treatment for the victim. The paramedics asserted tribal sovereign immunity because they were operating under a public safety cooperative agreement which expressly reserved the tribe’s immunity in case of suit. However, that did not work out for the paramedics because the Ninth Circuit held that a remedy against the paramedics would have operated against them individually and not the tribe. The paramedics themselves would be paying the plaintiffs’ damages, not the tribe (indemnity agreements notwithstanding); therefore, as persons sued in their individual capacity, the paramedics could not assert sovereign immunity as a defense.
Overall, the Maxwell case is troubling for tribal governments because the official/individual capacity distinction did not exist in federal Indian common law until this decision, to which the Turtle Talk blog discussed.I could go on as to why I like and dislike the Maxwell, but at the time I wondered if Maxwell gave disenrollees another shot at challenging their disenrollments if the individual tribal officers were sued in their individual capacities and not the tribe. The plaintiff’s attorney in this case thought the same thing, but unfortunately, it did not work out.
The Remedy Sought in Disenrollment Challenges Operates Against Tribes, Not Individuals
The Hon. William Hayes of the Southern District of California began its analysis with the usual verbiage about the contours of sovereign immunity, including familiar references to Santa Clara Pueblo that most disenrolled are familiar with it. Next, the court moved onto Maxwell and held that it did not apply here.
Maxwell calls for a “remedy-focused” analysis in determining whether an individual capacity suit against a tribal official was really an individual suit or a cloaked version of an official capacity suit. Here, the plaintiffs’ complaint sought money damages, injunctive relief and declaratory relief, essentially asking that the plaintiffs become restored to the tribal membership rolls. The tribe itself was not sued, only members of Pala’s Executive Committee (including the tribal chairman), who revised enrollment ordinances which gave them power to adjust the membership as they saw fit. Subsequently, the defendants disenrolled the plaintiffs, thus commencing this legal fight. However, the court ultimately determined that the remedy being sought would ultimately operate against the tribe because only the tribal government (via the defendant tribal officers acting in an official capacity) could reverse their disenrollment, and not the individuals acting only in an individual capacity. And, as the court noted:
Although Plaintiffs challenge the motives and the findings of the [Enrollment] Committee’s individual members, the [Plaintiffs'] Complaint alleges that the Committee, acting as a governing body, disenrolled Plaintiffs. ‘Without more, it is difficult to view the suit against the officials as anything other than a suit against the Band.’ [Citations omitted].
Plaintiffs called upon the court to make a tribe do something that Santa Clara Pueblo and well-established Ninth Circuit precedent says courts cannot do: interfere with tribal membership disputes.
Conclusion
So Maxwell was not what I was hoping it to be in this case, and once again the disenrolled do not get their day in court. However, this is the Southern District’s opinion; it remains to be seen how Maxwell establishes itself in the Northern, Eastern, and Central Districts.
The subtitle of the post: “What my new ‘About‘ page looks like.”
I’ve gotten rid of the “Me & My Blog” page because it sounded too juvenile and looking at it, I realized it had to go. I replaced with something much more solemn and truer to the purpose of this blog. I also briefly describe its origins.
Here are selections of the text:
Notes on Indian Law was borne out of frustration with my lack of understanding of Native American law despite the fact that, at the time of this blog’s inception, I was both a law student and (still) Native American. Subsequent studying and research has ameliorated most of my legal ignorance on this subject, though Indian law is quirky and still amazes me sometimes. By and large, this blog deals with some of the seedier sides of tribal sovereignty, namely tribal disenrollment. This blog’s flagship article series, Greed or Growing Pains, kickstarted my quest into understanding the plight of the disenrolled and why gaming tribes do what they do. Needless to say, I am not anti-gaming, far from it; it can be quite beneficial when used responsibly. When it is not, it can be quite devastating to Indian families.
…
While growing up, my grandparents told me numerous times that my ancestors came from a place called Ah-Wah-Nee, or as it is better known, Yosemite. My family and I are descendants of Ten-ie-ya (or Tenaya in popular vernacular), who was a Paiute Indian. The Indian history in and around Yosemite is fraught with mistakes, errors, and lies, committed either intentionally or negligently, by various federal government officials, other Indians, and various private individuals (both well-meaning and otherwise). Though you would never have thought about it, the picture of Indian identity within the park, both past and present, is not the full story. Curiously, I have shied away from using this blog as a means to tell everyone what I think about the situation and perhaps set the record straight. It is not for a lack of devotion to my heritage, I assure you. Time, research, and plain ol’ reluctance to take up such a monumental task keeps me from talking about it. Plus, it’s a subject that is immensely personal to me and I fear losing objectivity. However, the time may come when that will no longer stop me as I keep seeing abuses piled up on my ancestor’s lands and origins. For most people, the future is uncertain. In Yosemite, even the past is uncertain.
On the other end of the spectrum, I am mixed blood. While I am federally enrolled through my great-grandmother’s people (Walker River Paiute), my bloodline is intermixed with European and Hispanic origins. California is a great melting pot, beginning with the Native Americans, then the introduction of the Spanish, the Mexicans, and then the white man. In and around Central California it’s not uncommon to see Native Americans with Hispanic surnames. Other times you’ll see Native Americans with Euro-centric names as they assimilated into the population. For example, Rhoan. I’ve never been called “half-breed,” or a “nosebleed,” but I’ve often felt like that, standing with each foot in two separate worlds. In some ways, I am a mutt; but as my grandmother and grandfather always told me, I am a Native American and should always think of myself that way.
My sensitivity for Indian issues stems from these two places, Yosemite and my mixed blood heritage. In one sense, I am aware of the special and particularized needs of the Indian community, the importance of elders, the maintaining of tradition, protecting sacred sites, the survival of language, and the need for self-reliance. And yet I am pulled in another direction, one that stresses the Judeo-Christian foundations of this country, devotion to federalist principles, the need for fair and equal adjudication of our laws, and most of all, grateful for the liberties and freedom that America has provided me.
It’s a tough road to walk sometimes. I believe, perhaps naively, that there is a place for a stable, co-existence between Native America and the United States, based on mutual respect. However, the reality is that one group of people is clearly subordinate to the other. Documenting the clashes between Indian law and American federal law is what this blog is truly about, even with all my attention on tribal disenrollment. Even with that narrow subject, the intersection of gaming and Indian culture is truly a collision of Native and European values. It’s forcing tribes to deal with issues of Indian identity, cultural maturation, and a vast change in tribal infrastructure that no tribe has ever had the capacity to deal with in all the years leading up to the Indian Gaming Regulatory Act. It is truly a time for growing pains in Indian Country.
So, welcome to Notes on Indian Law, written by a mixed-blood Indian attorney who likes to think he can see both sides of an argument in a murky, ever-changing legal and cultural environment. I will never profess to having the answer, only an answer. And it might be wrong or misguided. If I was truly right about anything I wouldn’t have gotten into so many debates with people over what an answer should look like.
The ultimate goal of Notes is not to change the world or even a mind, but to inform, to enlighten, and hopefully, to encourage critical thinking and discussion of the issues brought up here.
I have an opinion on certain issues and you will have yours. If you wish to express them here, then feel free. All I ask is that you keep it clean, don’t troll, don’t be obnoxious; and, please, make coherent arguments that substantively relate to the post you’re commenting on. If you are just here to make noise then don’t expect to have your comments published. This is my blog and you are welcome to go start your own if you don’t like mine. For the rest of you, thanks for reading.
It’s been a long while since I last wrote something. Life has a way of getting in the way of your plans. I thought about this blog yesterday and thought it would be a good idea to formulate my philosophy on Indian gaming.
I’ve written a lot about secondary effects of gaming since this blog’s inception. You’ve heard me rail on and on about tribal disenrollments, the Indian Civil Rights Act, and greedy tribal councils. Yet at the same time I don’t think I’ve done enough to elucidate a clear stance on Indian gaming. I’ve written a sentence about it here and there, but it never received its own post. So, here it is.
Indian gaming is beneficial to tribes. It is a unique and lucrative economic tool that tribes may use to earn money for their people. Many tribes were shockingly poor and living in almost third-world conditions prior to the advent of Indian gaming. The money was desperately needed. Since its inception, Indian gaming has led to running water, indoor plumbing, standardized housing, clinics, schools, scholarships, jobs (for Indian and non-Indians), roads, buildings, and vast infrastructure improvements. Tribes have donated money to charity and invested some of their money in surrounding communities. In a perfect world, Indian gaming benefits everyone.
Unfortunately, Indian gaming has been used to oppress others. On this subject I’ve written plenty and need not repeat most of it here. To put it simply, avarice has begotten numerous civil rights violations and blackened many tribes’ images. Gaming tribes are seen as duplicitous, greedy, corrupt, and oppressive. Their use of tribal sovereignty as a means to use their money as they see fit and then hide behind sovereign immunity whenever they want is not an endearing quality. Many have called for an end to Indian gaming.
The remedies to these problems vary. Stronger congressional oversight, amending federal laws, partial or total abrogation of tribal sovereignty, more state power to intervene in tribal affairs, and exemption from taxation laws are just some of the proposed solutions. I honestly don’t know how the problem can be truly solved. I used to think (and still think) that Congress needs to step in and regulate tribal activity regarding membership despite tribes’ unique place in the law to handle their own membership affairs. However, I am becoming more convinced that one cannot simply legislate the problem away.
Ultimately, the solution has to come from the Indian tribes themselves. It’s hard to tell someone to stop acting badly towards others let alone an entire tribe, especially when the ruling families of that tribe firmly believe that they’re right, and in some cases, believe that society as a whole owes them something. But tribes need to realize that they are part of this society like everyone else and as a pluralistic society, we rise and fall together. Tribal sovereignty will always have its place, but it should not be a blank check to cast aside their own people over what they believe is an entitlement, whether it is for money or for the unfortunate belief that the disenrolled were never really members of their tribe to begin with. The Creator does not see things the way they do.
On July 10, 2012, the plaintiffs and the United States have stipulated (i.e., came to an agreement) to extended deadlines for filing the opposition to the plaintiff’s motion to enforce judgment that was highlighted in the recent news story regarding the Chukchansi casino. The United States requested, and the plaintiff’s agreed, that to adequately prepare a defense and gather appropriate documentation, their deadline for filing an opposition to the plaintiff’s motion be extended to September 7, 2012. The plaintiff’s reply will be filed by September 28, 2012.
On vacation this week. But while I’m away I thought of something.
On this blog, and others, I have repeatedly denounced the use of banishment and disenrollment as a means for unscrupulous tribal councils and factions to get rid of members of their own community based on little more than greed, petty family strife, and plain old petulance. The so-called “Paper Genocide” — (a term I dislike, but can’t think of a replacement right this second) — has claimed thousands of Native Americans’ identities, leaving many of them without access to subsidized health care, tribal schools, various services and casino money allotments. Currently, it is one of the great legal crises that is going on in America and more people need to be aware of it. Congress must do something about it. I’ve repeated these sentiments ad nauseum.
But, out of an abundance of fairness, I must ask: has there ever been a case where someone who was disenrolled actually deserve it? Put another way, has any Indian ever been banished or disenrolled as the result of a legitimate, non-nefarious purpose? I would appreciate some historical practices and examples as well.
The thing is, however, it’s hard to disentangle disenrollments that were made AFTER the tribe’s casino was built, or any time after the Indian Gaming Regulatory Act was passed. The core excuse I’ve heard to date about why tribal councils want to disenroll their own members it that they’re just correcting their paper work. Of course, the retort is that why should tribes care now what their paperwork says when they’ve had decades prior to the passage of the Indian Gaming Regulatory Act to correct it. At this point, it’s almost as if any disenrollment made after IGRA was passed is presumed to be tainted.
But, if there’s another way of looking at it, please clue me in.
Marc Benjamin of the Fresno Bee wrote an interesting piece regarding a new lawsuit filed in the Northern District of California against Picayune Rancheria.
This lawsuit is grounded in the 1979 Tillie Hardwick litigation (my post here) that effectively un-terminated several California rancherias from Congress’ California Rancheria Act of 1958. Any member of a terminated tribe can regain federal recognition if they can show that they (or their ancestors) was a member of the original Tillie Hardwick class that filed suit against the United States back in the 70′s/80′s; and, demonstrating that at the time of the Hardwick settlement, at least one class member from the Rancheria owned real property within the original Rancheria boundaries.
That is what the plaintiffs are doing in this case, claiming that their ancestor, Maryan Ramirez, was a Chukchansi Indian who was an original class member, was the only person entitled to establish the tribal government of Chukchansi. However, when Ramirez died, her family declined to negotiate with the BIA over how to re-establish the tribal government. Then, another family stepped in and negotiated with the BIA — whose ancestor was not an original Tillie Hardwick class member — and established the rancheria we all know today. Now, Ramirez’s descendants have filed suit to assert their rightful claim to the government.
I have no clue why they waited so long, but this will prove to be interesting.
The motion to enforce the judgment was filed on June 7, 2012 along with several, voluminous exhibits that I haven’t had time to sort through yet.
A new book has hit the shelves and I suggest you take a look at it. I know I will, eventually. Not just for what it says, but for what it probably won’t say: the Indian Civil Rights Act is completely useless to any unfairly disenrolled Indian seeking to regain their tribal citizenship.
As I’ve hit on in this post, and this post, the only remedy available under ICRA is habeas corpus, which many attorneys have tried to get creative in squeezing banishment and disenrollment under the definition of criminal custody to no avail. Even though the ICRA ports a version of our Due Process clause into Indian Country, the SCOTUS decision in Santa Clara v. Pueblo puts an end to anyone challenging a tribe’s definition of membership, allowing tribal councils to disenroll anyone they want.
I definitely want to read this book. Some serious scholarship went into compiling these essays and it will be interesting to see what the results are. The thesis of the book review cited above is simply this: “Together, this set of essays argues that the extension of rights to the American Indian tribes has adapted well, so long as each tribe has been free to interpret the Act within its own traditions.”
Well, there’s a problem with that. Treating your own people with complete disdain as you strip them of their citizenship out of petty family politics in order to reap larger casino profits isn’t something I’d call a tribe’s “traditions.” In fact, it’s fairly obvious that it is non-Indian. Judging by the text of the review, some chapters attempt to paint a rosy picture of tribal self-determination while others don’t shy away from ICRA failures to make any positive dent in Indian Country. Even if Indian Country has benefited somewhat from having ICRA around — what would have it been like without ICRA? — the reality is anything but a sense of “Mission Accomplished.” And after 40 years of ICRA, Indian Country has yet to be separated from the volumes of racially insensitive case law that keeps Indian Law jurisprudence in a state of profoundly embarrassing infancy, hindering any hope of Native Americans to be fully treated to the equal protection of the laws with complete and total due process.
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 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.
Procedural Facts
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.
Discussion
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.
Now What?
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.
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.
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, TribesToss 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.
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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
