More Disenrollments at Chukchansi; the Trouble with Documents

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:

The Legality of Tribal Disenrollments: Greed or Growing Pains?  (Part 1)
The Legality of Tribal Disenrollments: Greed or Growing Pains?  (Part 2)
The Legality of Tribal Disenrollments: Greed or Growing Pains?  (Part 3)
The Legality of Tribal Disenrollments: Greed or Growing Pains? (Part 4)
Tribal Disenrollments: Greed or Growing Pains? (Conclusion)

 

Plaintiffs from Cook v. Avi Casino appeal to the Supreme Court

Last November, I talked about a new 9th Circuit decision in Cook v. Avi Casino.  In Cook, the 9th Circuit Court of Appeals ruled that tribal sovereign immunity extends to corporations run by an Indian tribe.

Now, according to the Native American Rights Fund website, the plaintiffs are appealing their case to the United States Supreme Court.  Click here to view their petition for certiorari (PDF, 48 pages).

Among the questions the plaintiffs present for the court is the subject of jurisdiction, i.e., the power of the court to adjudicate a case.  Historically, the doctrine of tribal sovereign immunity prevents courts from hearing lawsuits filed against Indian tribes.

If the SCOTUS grants cert and holds for the plaintiffs then the immunity doctrine may be limited in its application and reverse the 9th Circuit’s decision (which the Supreme Court has a habit of doing) which, in turn, would have a tremendous impact on tribal sovereignty.  Of course, the Court has to grant certification first.

Will let you know what happens.

UPDATED (5/4/2009): The United States Supreme Court has denied certiorari.  (2009 WL 185422)

 

Tribal Law Fans: 3rd Annual Western Conference on Indian Sovereignty

On January 24th, 2009, the Federalist Society is hosting the 3rd Annual Western Conference in Simi Valley, CA at the Ronald Reagan Library.

Event details are: here.

Conference Title: Federal Sovereignty, State Sovereignty, and the Sovereignty of 562 Native American Tribes: A Match Made in Heaven or Somewhere Less Pleasant?

The Agenda:
10:00 a.m. – 10:15 a.m.
Conference Registration

10:15 a.m. – 12:00 noon
Roundtable Discussion: How Comfortably Does Tribal Sovereignty Fit With American Democratic Ideals?

12:00 noon – 1:45 p.m.
Luncheon Address

2:00 p.m. – 3:30 p.m.
Panel Discussion: International Law and Indian Law

3:45 p.m. – 4:45 p.m.
Debate: The Apology Resolutions and the Akaka Bill

4:45 p.m. – 5:30 p.m.
Student/Lawyer Reception

5:00 p.m. – 6:00 p.m.
General Reception

Featured Speakers:

* Hon. Carlos Bea, U.S. Court of Appeals, Ninth Circuit
* John Fund, Wall Street Journal
* Prof. Carole Goldberg, UCLA School of Law
* Dan Kolkey, Gibson, Dunn, & Crutcher LLP
* Joe Matel, Legislative Counsel, Senate Judiciary Committee
* Walter Olson, Manhattan Institute for Policy Research
* Hon. Diarmuid O’Scannlain, U.S. Court of Appeals, Ninth Circuit
* Prof. Maimon Schwarzschild, University of San Diego School of Law
* Hon. Tom Sansonetti, Holland & Hart LLP
* Prof. Alexander Tallchief Skibine, University of Utah College of Law
* Hon. Kenneth W. Starr, Dean, Pepperdine University Law School

Registration details:

$30.00 for all Non-Students

CLE also available for an additional $20.00

Free for Students

 

The Legality of Tribal Disenrollments: Greed or Growing Pains? (Part 3)

Previously

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.

Back to Part 2.

Or, continue to Part 4.

 

New 9th Circuit Case: Tribal Sovereign Immunity extends to Tribal Corporations

Picked this up from the JURIST: the 9th Circuit Court of Appeals has filed its decision in Cook v. Avi Casino Enterprises (opinion, PDF), holding that tribal sovereign immunity applies to tribal corporations owned and operated by Indian tribes.  In this case:

[The plaintiff] filed suit against Avi Casino Enterprises (ACE), a tribal corporation, and its employees after he was hit by a drunk driver. The driver was an employee of the casino who had been served drinks at a function at the Avi Casino, located on the Fort Mojave reservation in Nevada. [The plaintiff] argued that public policy demands that tribal corporations operating in the economic mainstream should not receive the same immunity granted to Indian tribes themselves. The court rejected that argument, and concluded that immunity applied to the corporation and its employees…

The drunk driving employee, whose BAC was 0.25, plead guilty to aggravated assault and driving under the influence and was sentenced to four years imprisonment.  She was given alcohol after already being drunk by two casino employees who were acting in their capacity as employees for a party held at the Casino.

The Court outlined the basics of tribal sovereignty:

Tribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe. This immunity applies to the tribe’s commercial as well as governmental activities. The parties do not dispute that the Fort Mojave Tribe itself is protected by sovereign immunity, but they disagree on whether ACE enjoys immunity as a tribal corporation.  (Cook v. Avi Casino Enterprises (9th Cir. Nov. 11, 2008, No. 07-15088) __ F.3d __ [2008 WL 4890167].)

The plaintiff argued that tribal corporations that compete in mainsteam business, like every other corporation, should not be subject to tribal sovereign immunity from suit, however the Court, while realizing that the plaintiff made a good argument, the established precedent denied him his relief.  The U.S. Supreme Court has upheld tribal sovereign immunity (begrudginly) in Kiowa Tribe v. Manufacturing Tech., Inc. (523 U.S. 751), but noted that only Congress could truly take it away.  Until that time, the 9th Circuit ruled in favor of the casino:

And the settled law of our circuit is that tribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a tribe itself.

The plaintiff also sued the two casino employees who gave the drunk driving employee alcohol after seeing that she was clearly intoxicated.  The employees’ motion for dismissal was granted because sovereign immunity extends to casino employees acting in their official capacity.

UPDATE! (1/9/2009): Cook v. Avi Casino Enterprises has been given an official reporter cite – 548 F.3d 718.

UPDATE (5/4/2009): Supreme Court has denied certiorari, so this decision stands as-is.

 

The Legality of Tribal Disenrollments: Greed or Growing Pains? (Part 2)

Previously…

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

On the other hand, according to [an April 20th, 2008 San Francisco Chronicle] article, tribal leaders of California Indian tribes “contend that the anger over cash and disenrollments is just a growing pain of an industry that has exploded eightfold from $1 billion in 2000″ to the powerhouse it is now.  Also in the article, law professor Carole Goldberg, chair of the UCLA Native Nations Law & Policy Center, said “some of the human drama is being amplified…the tribes concede their sovereign authority if they talk to the non-Indian world, so they don’t say much, which just leaves opponents to do much of the talking.”

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

Santa Clara Pueblo v. Martinez

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

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

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

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

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

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

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

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

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

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

Back to Part 1.  Proceed to Part 3.

 

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

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

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

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

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Introduction

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

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

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

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

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

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

A Brief History of Tribal Sovereign Immunity

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

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

 

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

 

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

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

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

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

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

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

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

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

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

Proceed to Part 2.