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.
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.
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.
————————–
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
In the last article, I examined the federal and California state cases that highlighted the failure of the Indian Civil Rights Act to find an adequate remedy to the disenrolled Indians. This article will highlight the next federal statute, Title 28 of the United States Code, section 1360(a), better known to its adherents, followers, and enemies as Public Law 280.
Brief History Behind Public Law 280
The relationship between Native Americans and the United States government is tense, to say the least. Beginning in 1949, the American government moved away from a prior era that favored Indian self-government:
In 1949 the Hoover Commission issued its Report on Indian Affairs, recommending an about-face in federal policy: “complete integration” of Indians should be the goal so that Indians would move “into the mass of the population as full, taxpaying citizens.” …Though now formally repudiated by the federal government, the memory of congressional committees and bureaucrats in Washington “terminating” the existence of hundreds of tribes across Indian country stands as a chilling reminder to Indian peoples that Congress can unilaterally decide to extinguish the special status and rights of tribes without Indian consent. (Getches et. al., Cases and Materials on Federal Indian Law (2005) p. 201.)
A quote from Senator Arthur Watkins provides the intent behind the Termination policies:
In view of the historic policy of Congress favoring freedom for the Indians, we may well expect future Congresses to continue to endorse the principle that “as rapidly as possible” we should end the status of Indians as wards of the Government and grant them all the rights and prerogatives pertaining to American citizenship… Following in the footsteps of the Emancipation Proclamation…I see the following words emblazoned in letters of fire above the heads of the Indians – “These people shall be free!”
In short, in the name of liberty, the trust relationship between Indians and the United States was over, the guardian ward position that the United States had assumed over Indian tribes was over, and tribal sovereignty was “effectively ended.” The government cut checks to individual Indians for the value of their land which often was not very little money and said nothing for the loss of federal benefits and protections.
In keeping with the tone of setting the Indians “free” from federal interference, Congress passed Public Law 280, a federal law that conferred civil and criminal jurisdictions from federal oversight to state oversight. The law only applied in certain states; California being one of them.
But what about Santa Clara Pueblo v. Martinez and its proclamation that inter-tribal matters are matters left to tribes? Was that decision abrogated upon the passage of PL-280?
PL-280 and California State Courts
In the last article, I briefly surveyed Lamere v. Superior Court of Riverside. In that case, members of the Pechanga Indian Reservation were disenrolled “on the general ground that the ancestor from whom [the disenrolled] claimed descent was not one of the ‘original Pechanga people’ and her descendants therefore did not qualify as Band members.” The disenrolled brought their action in state court because Pechanga lacked a tribal court of their own; their basis of finding that the court had jurisdiction to hear the case rested on PL-280′s grant of state civil jurisdiction over Indian tribes. The court had this to say:
…in light of [Santa Clara Pueblo v. Martinez], Public Law 280 cannot be viewed as a general grant of jurisdiction to state courts to determine intratribal disputes. …this provision “seems to have been primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens… In our view, [the current case] is not a “private legal dispute between reservation Indians,” but rather goes tot he heart of tribal sovereignty. (Lamere v. Superior Court of Riverside (2005) 131 Cal.App.4th 1059, 1064 [31 Cal.Rptr.3d 880]).
In the Lamere quote, the court cited Bryan v. Itasca County, a United States Supreme Court case that has been foundational in interpreting the grant of civil jurisdiction to state courts. In Bryan, the issue was whether PL-280 would allow “the States to tax reservation Indians except insofar as taxation is expressly excluded by the terms of [PL-280].” (Bryan v. Itasca County (1976) 426 U.S. 373, 375 [96 S.Ct. 2102, 48 L.Ed.2d 710]). Citing Bryan, the Court of Appeal of California held that:
…the Supreme Court explicitly denied that Public Law 280 confers jurisdiction in teh states over the tribes themselves: “[PL-280] itself refutes such an inference: there is notably absent any conferral of state jurisdiction over the tribes themselves.” California courts are in accord. “No case been cited to us, and we have found none, which concludes or even suggests that [PL-280] conferred on California jurisdiction over the Indians…” (Ackerman v. Edwards (2004) 121 Cal.App.4th 946, 954 [17 Cal.Rptr.3d 517]).
As you can see, Santa Clara‘s holding is left intact because matters of tribal sovereignty can never be adjudged or scrutinized by a state government. That doesn’t make the situation better for disenrolled Indians, however. All it means is that they are denied yet another means of contesting their disenrollment.
Beating a Dead Horse
The majority of my conclusion is in the last article, but for now, I would like to reflect on the past few months and the words that I have written thus far.
If these articles have taught you anything it’s that tribal sovereign immunity bars courts the jurisdiction necessary to hear these cases and try them on their merits. Without jurisdiction, courts will never be able to use their equitable discretion in determining whether the disenrolled Indians were unfairly cast out or whether their disenrollments were proper exercises of sovereign matters.
There is slight comfort in knowing that tribes’ sovereign immunity remains intact. Not all tribal council decisions concerning members are negative. Not all membership issues are disenrollment issues. Although I want to develop this theme in the conclusion, I do want to take the time to say that I fully support what little sovereignty that Indian tribes have left. Being Native American means being in peril: precious rights often hang by threads and similar threads are all that keep the swords dangling above the heads of Indians from breaking.
I wrote these articles because I had questions concerning the disenrollments. I wanted to know whether the disenrolled sought their day in court, what past precedent the judges were using in making their decisions and what those decisions said. My curiosity was rewarded though I am not that happy for it. I didn’t always like what I found – matter of fact, I hardly ever “liked” what I found but my curiosity has been sated.
My biggest fear is that these articles are nothing more than an exercise in futility. Over the months I have written four articles all basically saying the same thing. The disenrolled have nothing to protect them from their tribal councils. For months I feel that I have beaten a dead horse, constantly blogging, quoting court cases and statutes, and always coming back to the same spot: the courts have no jurisdiction. Always the lack of jurisdiction.
And what of the courts themselves? Eternally bound by past precedent, whether its the United States Supreme Court or individual federal and state courts, the courts carry forward the legacy of racist and discriminatory policies that have already died out in many ways in our society but courts are forced to carry them forward. It has become very apparent to me that the Judicial Branch of the United States government is the worst place to fight for an Indian’s rights. For far too long the disenrolled have essentially been barking up the wrong tree. I can’t blame the courts for that, though; it’s their job to follow the code of stare decisis. Courts need guidance from a different precedent.
It appears that only Congress can give those rights…or take them away.
——–
This is the last substantive article on the issue of tribal disenrollments. If you wish to end your journey here then feel free to do so; there is no more law to quote, no more statutes to read and no more history that I feel is relevant to this issue. The next article is merely one large conclusion and it’s purely optional – I feel like I’ve kept you here long enough.
I would like to take this time to thank every one of my readers who have patiently waited for each article to come out. Sorry about the delay between articles – law school has kept me extremely busy, so I hope you understand. In particular, I would like to thank the disenrolled Native Americans who have stopped by to read and offer their two cents on the whole affair. I would like to dedicate these articles to you and along with my thanks, wish you the best and hope that you one day get the justice that many of you, whether you are in California or any other state, deserve. You will always be an Indian, no matter what any person says and no one can take that away from you.
A new Fresno Bee article concerning Chukchansi Gold’s disenrollment of hundreds of members has stated:
Tribal Chairman [of Chukchansi] says the disenrollments were necessary to correct past membership mistakes and had nothing to do with increasing the wealth of remaining tribal members.
“We had to find out if they were qualified Chukchansi,” he said. “It was a process and procedure that had to be followed.”
In my research on tribal disenrollments I’ve only dealt with court cases and news articles. This is not the first time that I recall hearing something from the other side – the disenrolling side – on any due process procedure given to those who are about to be disenrolled. However, some clarity was added when looking at a February 2005 newsletter published by Chukchansi (provided by the Fresno Bee):
Feb 2005 Newsletter Excerpt
The newsletter then went to discuss a larger issue concerning a recall election and various political rivalries within the tribe. An interesting sentence:
[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.
Poor enrollment practices? Membership files being lost, stolen or destroyed? Is there more to the disenrollment issue than just the “evil council” perpetuating disenrollment after disenrollment for the sake of cronyism and greed?
In my own life I have seen just how easily it is for a tribal government (or one’s pretending to be) to misplace files. I was never aware of all the facts at the time so I can’t accuse anyone of deliberately destroying or losing files that could prove detrimental to their own positions or authority however the prevailing, unofficial opinion was that the documents were lost to either intentionally or negligently. So it doesn’t surprise me that such a large tribe (or at least not as large as it used to be) would have trouble holding onto their documents.
Somewhat related to this subject is the issue of finding geneaological records. The basis of many enrollment and distribution lists were census records taken in the 19th century – a time period where America could have cared less about Indian people and would much rather have them put to the sword or sent to boarding schools. As such, documenting one’s roots are next to impossible. In my family tree there are numerous references made to misspelled names, vague entries, or simply put, no records exist at all. Also, numerous members of my family were misidentified as Miwuks when they were really Paiutes.
Two questions emerge from this turmoil: 1) Did the census takers interview the Indians directly to get their information? or; 2) Did they ask other Indians. If the answer to the second question is yes then that raises all sorts of issues. How can you rely off second hand information for anything important like a census?
Compounding the problem further is that Indians in those days didn’t keep such records or have birth certificates. My great-grandmother was born in 1915; my mother and grandmother said she has one but the State of California can’t find it.
The sad truth is that researching one’s Indian ancestry is heavily dependent upon the shoddy research of 19th century census takers. One wonders if they were biased against Indians given the attitudes of Manifest Destiny prevalent in the American West which would aid their motivations to conduct as shallow research as possible, just enough to get by and move on to the next assignment. Or maybe they did try but no Indian would talk to the white man – they certainly had their reasons. Whatever the reason – tracing Indian lineage in the American West, particularly around Nevada and California is very difficult.
The trouble with documents when it comes to Indians is that despite all the research holes the government bases its conclusions on who is a legally recognized Indian and who isn’t on them. The Indians took care of each other; they took in people from other bands for the sake of survival and community. Despite the weakness of documentation the Indian communities made up for that weakness by enrolling together as one tribal government. It seems that the lack of paper evidence was disregarded in favor of communal ties and family relationships – the type of bond that only blood and friendship can bring. And like the newsletter points out, the more people on the roll list then the more money they got from the BIA.
So if the tribes needed their enrollment numbers up at one time then why do they need them reduced now? What factors would justify the tribes to get serious about determining who is a member of their tribe and who isn’t? What role does having a casino play in determining whether the membership lists needed to be reduced or expanded?
Whether the “evil council” stereotype holds up to scrutiny, I must conclude that given the wrongs committed against the Indians and the reaction to those wrongs – i.e. community building as a means of survival and friendship – the use of disenrollment as a function of protecting the tribal community is a gross farce. I find such excuses by this tribal council or any tribal council to that effect to be putting up the window dressing of due process when it smells of something different.
For more information on the tribal disenrollments in California, please see my article series on the subject:
In the last article, and the one before it, we discussed the origins of tribal sovereign immunity and how it has acted as a buffer against lawsuits filed by private citizens and state governments. We also discussed tribal disenrollments, the process by which federally recognized Indian tribes may expel individuals from their membership and revoke their legal status as Native Americans. As always, there are two sides to any issue. One side argues that Indian tribes are disenrolling their members because it would mean more money spread out among fewer people from tribal gaming, that Indian gaming itself is perpetuating greed and deceit amongst the Indian people. The other side argues that regulating tribal membership is an offshoot of maintaining and growing a multi-million dollar business; that any one particular tribe should only have to worry about its own members and provide for them, and not for anyone whose lineage to that particular tribe is questionable.
The last article dealt with Santa Clara Pueblo v. Martinez, a U.S. Supreme Court case dealing directly with tribal membership regulation. The Court held:
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. (Santa Clara Pueblo v. Martinez (1978 ) 436 U.S. 49, 55 [98 S. Ct. 1670, 56 L. Ed. 2d 106].)
Santa Clara also marked an occasion whereby Indians sought relief under statutory law; in that case, it was the Indian Civil Rights Act (25 U.S.C. 1301-1303). In California, many disenrolled have attempted to find relief under Public Law 280, a federal law which hands down certain civil and criminal jurisdiction to certain state governments. This article deals with the Indian Civil Rights Act of 1968.
The Indian Civil Rights Act & California State Courts
Santa Clara Pueblo highlighted a cause of action concerning tribal membership with regards to ICRA; unfortunately, the Supreme Court struck down the plaintiff’s suit: “In the absence here of any unequivocal expression of contrary legislative intent [behind ICRA], we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit.” (Santa Clara Pueblo v. Martinez, supra, 436 U.S. 49, 59.)
The Indian Civil Rights Act was passed in 1968 and was meant to extend to tribes certain constitutional protections that weren’t supplied to them under the United States Bill of Rights. (Talton v. Mayes (1896) 163 U.S. 376, 382 [16 S. Ct. 986, 41 L.Ed. 196]; see also Getches et. al., Cases and Materials on Federal Indian Law (2005) p. 388.) Section 1302 is simply a near verbatim parroting of the United States Bill of Rights however several features are missing from ICRA, namely, “limitations similar to the establishment of religion clause, the guarantee of a republican form of government, the privileges and immunities clauses, the provisions involving the right to vote, the requirement of free counsel for an indigent accused, and the right to a jury trial in civil cases.” (Getches, at p. 388.) The only remedy available under the Indian Civil Rights Act is that of habeas corpus:
The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe. (25 U.S.C. §1303.)
Furthermore, California courts have re-affirmed Santa Clara Pueblo‘s holding where Indians have attempted to bring causes of action against the tribes and tribal officers that have disenrolled them:
The [Supreme Court of the United States] found that imposition of a federal cause of action for enforcement of the rights created in title 1 of the ICRA, however useful in securing compliance with 25 United States Code section 1302, would undermine the authority of tribal forums and impose serious financial burdens on financially disadvantaged tribes… Therefore, the Supreme Court found section 1302 does not impliedly authorize actions for declaratory or injunctive relief against either a tribe or its officers. (Ackerman v. Edwards (2004) 121 Cal.App.4th 946, 952-953 [17 Cal.Rptr.3d 517].)
The Ackerman case also carried Santa Clara Pueblo‘s refusal to grant causes of action under the ICRA in setting aside a tribe’s sovereign immunity into California state courts via Public Law 280, which shall be discussed shortly. The Ackerman case centered around “the 76-member Foreman family that says it was unjustly cut from the Redding Rancheria‘s membership rolls. Members of the Redding Rancheria voted in January [2004] that the family could not prove its links to the tribe… The family alleges the vote was driven by greed for increased gaming dividends that are paid out to tribal members.” (Lawsuits over cuts to tribal membership rise as Indian gaming industry grows (July 2004), volume 2, No. 7, Nat. Amer. L.Rep. 63.)
The trouble for the Foreman family began when a tribal elder wrote two letters to Redding’s enrollment committee “casting doubts” on their lineage and, upon further investigation, found that an application file for the family’s grandfather claiming ancestral ties through an already established member of the tribe lacked a birth certificate and baptismal record. (Ackerman v. Edwards, supra, 121 Cal.App.4th 946, 949.) The family was then disenrolled according to procedures adopted by the tribe wherein an impartial mediator (who must also be an attorney) would preside over a formal hearing on the reconsideration of tribal enrollment. (Id. at p. 950.) When the disenrolled sought action in court, the Tribe filed a motion to quash service of summons based on the trial court’s lack of jurisdiction to which the court held in favor. The disenrolled then sought appeal on the grounds that Public Law 280 granted California courts jurisdiction to hear membership disputes despite Santa Clara Pueblo’s holding, however the appeals court held against them and affirmed the trial court’s decision.
In a similar situation, a family made up of 132 individuals, constituting one-fifth of the Pechanga Band of Luiseno Indians, were disenrolled when “tribal leaders…questioned whether the family’s ancestor…was a true Pechanga Indian.” (Pechanga family files second lawsuit alleging wrongful tribal disenrollment (April 2005), volume 3, No. 4, Nat. Amer. L.Rep. 40.) The lawsuit was filed, charging “Pechanga leaders with seeking to expand their share of power and gaming profits.” (Ibid.) The lawsuit specifically charged the tribe with violating its own laws as well as the ICRA to which the trial court, after much litigation, dismissed the lawsuit for lack of jurisdiction based on tribal sovereign immunity. The disenrolled appealed, claiming the court did have jurisdiction via Public Law 280. The appellate court stated:
[The disenrolled plaintiffs] argue that as the [Pechanga Band] does not have a “tribal court,” the state courts [of California] therefore operate as de facto “tribal courts” to decide disputes between tribal members. As we will explain, California courts act as “tribal courts,” if at all, in only a limited sense, and that sense does not extend as far as plaintiffs argue… With some reluctance we conclude that Congress did not intend [Public Law 280] to authorize state courts to intervene in a case such as this. (Lamere v. Superior Court (2005) 131 Cal.App.4th 1059, 1062 [31 Cal.Rptr. 3d 880].)
Aside from denying plaintiff’s Public Law 280 argument, the court dealt with their cause of action under ICRA:
The cause of action under the Indian Civil Rights Act of 1968 is also unsustainable in California courts. As [Santa Clara Pueblo v. Martinez] explains, Congress chose not to create a federal remedy for tribal violations of the act in order to protect tribal autonomy; a fortiori Congress cannot have intended that the various courts of Public Law 280 states would have jurisdiction over such claims. (Id. at p. 1067.)
ICRA Habeas Corpus Remedy & Federal Courts
Poodry v. Tonawanda Band of Seneca Indians
The only remedy available under the ICRA is that of Habeas Corpus. Banishment, unlike disenrollment, pertains to geographic movement such as physically removing an Indian person from the borders of the Rancheria or Reservation however it is implied that one is also disenrolled, i.e. losing a certain legal and financial status, when banished. A case in the 2nd Circuit of Appeals, Poodry v. Tonawanda Band of Seneca Indians, took on the issue of whether “banishing” members of an Indian constituted an unlawful detention sufficient to activate the ICRA’s sole remedy. The court ruled positively on the issue, however, the court also took pains to distinguish between whether banishment was a criminal or civil act and ultimately deciding that it was a criminal one. In looking at the legislative history of ICRA, the Court concluded:
Since these proposed remedial sections referred specifically to criminal convictions, it would be possible to conclude that the remedial section ultimately enacted-providing for habeas review-was intended by Congress to apply only in criminal cases. (Poodry v. Tonawanda Band of Seneca Indians (2d Cir. 1996) 85 F.3d 874, 889.)
Futhermore, in a purely criminal context, banishment constituted a deprivation of liberty. (Id. at p. 894.) However, a defeat has handed to the plaintiff on the basis of jurisdiction, the constant enemy of tribal litigants. On what could have been a doorway for other federal circuits to allow banished and disenrolled a federal habeas corpus remedy, the 2nd Circuit ruled:
[ICRA] does not signal congressional abrogation of tribal sovereign immunity even in habeas cases. In claiming otherwise, the petitioners misapprehend the reasoning of the cited passage from Santa Clara Pueblo: not only does § 1303 not serve as a general waiver of immunity in civil suits, there is no immunity issue here at all. Because a petition for a writ of habeas corpus is not properly a suit against the sovereign, the Tonawanda Band is simply not a proper respondent. (Id. at p. 899.)
Despite banishment being a criminal act that served as an unlawful detention the fact still remained: ICRA is useless against tribal governments who disenroll or banish their members.
Quair v. Sisco
To drive the point further, the 9th Circuit took up banishment under the habeas corpus remedy of ICRA in Quair v. Sisco. The dispute arose from the Santa Rosa Rancheria Tachi Indian Tribe who voted to disenroll and banish the two plaintiffs who then filed a cause action against the tribe citing violations of Santa Rosa’s constitution, and that such violations could be sustained via the habeas corpus remedy of ICRA. The Court ruled, citing Poodry, that banishments were punitive in nature but didn’t conclude that they were criminal but civil. (Quair v. Sisco (9th Cir. 2004) 359 F.Supp.2d 948, 966.) Despite, not being a criminal act, the banishments and disenrollments may have possibly been a violation of ICRA thus denying each side the summary judgment they sought.
A summary judgment is simply a finding by a judge that there is such a dispute in each side’s presentation of the facts that the dispute must be resolved by a jury and not a judge. However, a jury could not determine the outcome of the dispute based on the same jurisdictional problem Poodry had:
…federal courts will not review an alleged violation of a tribal constitution on the ground that it is an internal tribal matter subject to sovereign immunity. Nonetheless, petitioners assert, “when the violation of its own Tribal Constitution allows a tribe to exceed its jurisdiction under the Indian Civil Rights Act, the Court does have jurisdiction to review the matter.” However…petitioners’ claim is barred by the doctrine of sovereign immunity. “Jurisdiction to resolve internal tribal disputes, interpret tribal constitutions and laws, and issue tribal membership determinations lies with Indian tribes and not in the district courts.” Because respondents have been sued in their official capacities, these claims are barred by the doctrine of sovereign immunity. (Id. at p. 979.)
The judge in the Quair case ordered Santa Rosa General Council to hold a rehearing to reconsider its disenrollment and banishment of the plaintiffs. At this rehearing the plaintiffs would have the opportunity to have legal counsel present and to present witnesses. The plaintiffs didn’t show to the rehearing claiming that the rehearing itself was a violation of ICRA as it was being conducted by the very same governing body that unfairly disenrolled them anyway. The General Council then voted once again to disenroll and banish the plaintiffs. The plaintiffs once again took up legal action under ICRA, this time arguing that disenrollments were subjected to the same habeas corpus review as banishments. In an unpublished/non-citable opinion, the court held:
Here, the disenrollment of petitioners does not qualify as detention under § 1303…disenrollment strips a member of tribal membership and the tangible benefits that attend upon membership… In this case, all the benefits are financial, such as monthly per capita payments that come from the Tribe’s gaming revenue… Section 1303 grants federal courts jurisdiction to review [detentions] and not penalties that, while harsh, do not constitute detention. Therefore, the court finds that § 1303 is simply inapplicable to the disenrollment of petitioners. (Quair v. Sisco (May 21, 2007, 1:02-CV-5891 DFL) [nonpub. opn.].)
Quair and Poodry point out the uselessness of pleading a disenrollment case under ICRA. The last statute the disenrolled have used to combat their former tribal nations is Public Law 280, a federal statute that cedes criminal and civil authority to certain states, among them being California. As we will see in Part 4, this too has proven ineffective.
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.
