Self-determination or self-decimation? 'Banishment and disenrollment in Indian country'
Tribal nations and their governing bodies, like all human communities, are in a constant state of flux. They generate on their own and absorb from the outside a bewildering and seemingly increasing array of issues that create for each First Nation, no matter their population size, opportunities to evolve and mature or to regress and decay.
Issues include the exercise and enforcement of vital treaty rights, the complicated dynamics of intergovernmental relations, profound environmental concerns and the always uneven ground of land claims and sacred site battles. These are but a few of the multitude of topics that warrant constant tribal vigilance. And, of course, each of these issues requires enormous outlays of time, energy and resources.
As critical and complicated as these topics are, they pale in comparison to what is arguably the most important question that has confronted tribal nations from their emergence accounts to the present time: What does it mean to be Dine’, Anishinaabe, Yakama, Lumbee, Tohono O’odham, Narragansett, Pechanga, or Chukchansi? What, in other words, are the defining characteristics that make an indigenous nation just that: indigenous and a nation? And what is required of each individual in those nations to be considered a bona fide participant, citizen or, for lack of a better term, member of a given First Nation?
This set of intimately related questions of what it means to be an indigenous person in a particular tribal nation has been crucial for every generation of all tribal nations from the moment they came into existence, as every generation has the inherent free will to self-identify as whatever they choose to be.
Historically, our lands, our languages, our spiritual beliefs and activities, and our kinship systems provided the sacred boundaries and frameworks necessary to enable each First Nation and the individuals and clans constituting those nations, to generally rest assured in their collective and individual identities and to not have any questions about who they were.
Vine Deloria Jr. once succinctly noted as much when he stated that “the gut question has to do with the meaning of the tribe. Should it continue to be a quasi-political entity? Or it could become primarily an economic structure. Or it could become, once again, a religious community. The future, perhaps the immediate future, will tell.” In other words, at their core, tribal nations were and should become again sacred bodies of related kinfolk. This is the essence of what it means to be a tribal citizen within a First Nation.
That is not to say, however, that tribal nations were closed communities. Far from it. We have long engaged in adoptions of other Native and non-Native individuals and, in some cases, entire peoples. We intermarried with other clans, races and ethnic groups. In addition, we occasionally faced situations, at times, where some disgruntled souls would voluntarily opt to abandon tribal relations.
On even rarer occasions an individual might commit a grievous offense (e.g., premeditated murder) for which they might be killed or banished (disenrollment is a legal term that does not appear until the 1930s), if all other attempts to resolve the conflict failed. But the available evidence and the oral traditions of tribes suggests that given the kinship structure of most tribal nations that were always focused on mediation, restitution and compensation, permanent expulsion of tribal relatives was rarely practiced.
Within the last 20 years, however, coinciding with both the emergence of high-stakes gaming operations and increased criminal activity, a number of tribal governments throughout North America have, in helter-skelter fashion and at unprecedented levels, been dramatically redefining the boundaries and meaning of what it means to be a Native citizen. Many have initiated formal banishment and legal disenrollment proceedings against ever-increasing numbers of their own relatives.
In fact, some tribal officials appear to be radically veering away from the positive ideology of self-determination that has served them well, and have instead adopted an ideology of self-decimation in which, for a variety of reasons, they are literally dismembering significant portions of their citizenry.
In recent years, the following tribes have or are in the process of banishing or disenrolling tribal citizens: the Las Vegas Paiutes (Nevada); the Sauk-Suitattle (Washington state); the Oneida Nation (New York); the Tonawanda Band of Seneca (New York); the Lummi (Washington state); the Mille Lacs Band, Grand Portage Band and Boise Forte Band of Ojibwe (Minnesota); the Sac and Fox (Iowa); and the Narragansett Tribe (Rhode Island).
The greatest concentration of disenrollments are occurring within the small nations of California, including the Redding Rancheria, Enterprise Rancheria, Maidu Barry Creek Rancheria, the Chukchansi of the Picayune Reservation, the Pechanga Band of Luiseno Indians, the Santa Rosa Rancheria and the Viejas Band of Mission Indians.
Why is legal, political and cultural termination of our own kin occurring at such a heightened level now? Are the tribal governments engaged in such harsh decisions acting in a manner that comports with the traditional notions of identity discussed above, or are tribal officials now acting like privileged and exclusive corporate clubs? What rights do the banished/disenrolled citizens have to contest this most profound of severances? What role, if any, should the federal government play in these difficult affairs, since those disenrolled also happen to be U.S. citizens as well and are entitled to basic civil liberties like all other citizens?
Each of these heavy questions requires much more attention than an op-ed column allows. But I should like to at least briefly discuss the first one – Why the obvious spike in banishments and disenrollments?
I have been keeping an eye on this issue since 1996, when a federal court ruled in Poodry v. Tonawanda Band of Seneca Indians that five Seneca citizens who had been permanently banished by the tribe on the grounds that they had allegedly committed “treason” against the Seneca Nation were entitled to federal review of the tribe’s action, since banishment was considered a severe enough punishment involving a sufficient restraint on their liberty. The five plaintiffs had accused council members of “misusing tribal funds [and] suspending tribal elections,” among other things.
As I delved deeper into this topic it became clear that while tribal governments have always enjoyed the sovereign right to decide who can be recognized as tribal citizens and have, in many cases, the treaty and constitutional right to evict nonmembers, it was not until the Supreme Court held in Santa Clara v. Martinez (1978) that tribal governments, as one of their retained powers, clearly had the right to decide all membership questions. Those internal decisions, Justice Thurgood Marshall said, would generally not be interfered with by the federal government. Armed with this decision, larger numbers of tribes began to more energetically look to legally terminate the status of certain tribal members.
In the years after Santa Clara, the still-sporadic cases of tribal disenrollments and banishments typically revolved around questions of family feuds and political power struggles, sometimes masked by the alleged lack of sufficient blood quantum of those facing disenrollment.
By the early 1990s, as violent crime, drug activity and gang strength had intensified, and with Indian gaming revenue and judgment funds providing some tribal governments with sudden and, in some cases, enormous increases in economic wealth, these factors – but especially the gaming revenue – provided some tribal officials with additional rationales on which to base disenrollment proceedings.
Of course, in some instances crime and economic benefits were simply grafted onto pre-existing family conflicts, political and ideological power struggles, and racial criteria and blood quantum issues. Any one or combination of these factors could be and has been the basis on which to terminate tribal citizens.
In a few cases, especially those centered around criminal activity, it appears that tribes have reluctantly determined that disenrollment is one mechanism they may sometimes have to employ in order to maintain community stability and they have carefully constructed clear guidelines and procedures to carry out this most difficult process.
In a majority of disenrollment cases, however, some tribal officials are, without any concern for human rights, tribal traditions or due process, arbitrarily and capriciously disenrolling tribal members as a means to solidify their own economic and political bases and to winnow out opposition families who disapprove of the direction the tribal leadership is headed.
What was historically a rare event – the forced and permanent expulsion of a relative who had committed a terrible offense – has tragically become almost commonplace in Indian country, leaving thousands of bona fide Native individuals without the benefits and protections of the nations they are biologically, culturally, and spiritually related to.
While I fully support the inherent right of tribal nations to decide their own citizenry, I do not support, nor does history or tribal tradition affirm, the oftentimes arbitrary power of some tribal institutions to categorically disenfranchise and disenroll tribal individuals, entire families and, in some case, large groupings of tribal members on specious and questionable grounds.
One suggestion to safeguard the rights of those facing banishment/disenrollment would be the development of an independent, possibly inter-tribal body that would have the power to fairly and impartially review a tribal government’s enrollment decisions. In theory, a tribal court would be the logical institution since presumably courts provide an unbiased assessment of a particular conflict. Unfortunately, not every tribe has a court and not every tribal court is sufficiently independent of the political branches it operates next to, since a constitutional separation of powers continues to be an issue for many tribes.
Tribal governments currently engaged in or considering such actions should look deep within their own past for guidance on such important decisions. What most every tribe would discover is that historically, and until very recent times, no tribal leaders lightly set about the permanent banishment of individuals or families they were fundamentally related to.
Other far less draconian sanctions existed – ostracism, ridicule, temporary removal, physical punishment – to restore balance to the community when individuals acted contrary to the laws and customs of the nation. Financial factors, DNA tests, and a preponderance of U.S. government historical records were never used to effectively terminate the existence of tribal citizens.
If tribal governments continue down the path of wholesale evictions of their own people on the most spurious of grounds, they may not only eventually provoke the federal government to comprehensively step in and interfere in this most private of tribal decisions; but more importantly, they will continue to be acting in a manner that profoundly violates the true spirit of what it means to be a tribal nation – a nation in which all are related by genealogy (culturally derived, not fractions of blood), by land, by language and by spiritual traditions.
<i>David E. Wilkins, Lumbee, is a professor of American Indian studies at the University of Minnesota.