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Two Possible Paths Forward for Native Disenrollees and the Federal Government?

David Wilkins
6/4/13

Disenrollment, a seemingly innocuous term when used outside Indian country, has become a loaded word that rivals, if it does not surpass, “termination” as a concept that invokes fear and trembling in those natives who suffer its consequences. While the federal policy of termination in the 1950s was the formal repudiation of numerous Native nations’ recognition and benefits and constituted an abrupt cessation of the trust relationship; tribes that have instituted disenrollments effectively repudiate an individual tribal citizen’s recognition and benefits and crush the nation’s trust relationship with that person.

Federal termination of Native nations was the intentional destruction of the political and economic identity of an indigenous people; tribal termination via disenrollment of bonafide native individuals is the purposeful destruction of the political and economic identity of a tribal citizen.

Tribal governments justify disenrollments on several grounds: fraud, documentary errors, insufficient blood quantum, and criminal activity are frequently cited reasons. Disenrollees, on the other hand, often assert that their tribes’ official rationales are mere pretenses that conceal the real motivation for disenrollment—the casting out of members who challenge tribal political figures who appear intent on expanding their own economic and political empires.

Disenrollees are deprived of explicit political and economic benefits and lose their legal status as tribally and federally recognized citizens. Culturally, of course, they remain imbued with the core values, beliefs, and knowledge associated with being an indigenous citizen, even if their ability to exercise cultural sovereignty is denied them on tribal lands.

Disenrollment is expanding throughout Native America, with Native nations in at least seventeen states engaging in the practice. Precise numbers are nearly impossible to track down since the nations carrying out the practice are loathe to reveal their numbers, and the Bureau of Indian Affairs will not divulge the data, asserting that it is an internal matter left to each native community.

Evidence of the spread of the disenrollment virus can be found in a spate of recent federal and court rulings. In the first, involving the Cahto Tribe of Laytonville Rancheria, the federal court found that the Bureau of Indian Affairs had no authority to review appeals from the tribe’s disenrollment decision. Another federal court ruled that the Pala Band of Mission Indians’ sovereign immunity shielded the tribe’s officials from suit by twenty-seven disenrollees. And last week, the Nooksack Tribal Court in Washington State held that the Tribal Council could move forward on its decision to disenroll 306 tribal members--roughly 15 percent of the nation’s 2000 member population.

Imagine, if you can, the U.S. Congress, the Supreme Court, or President Obama acting to strip the citizenship (which fortunately is not an available penalty under any federal statute—states can’t do it either) of 15% of the nearly 300 million citizens in the United States—a reduction of approximately 45 million persons!

Every sovereign, of course, enjoys as one of its bevy of inherent powers the right to decide who is entitled to citizenship/membership in their nations or states. But true sovereignty fundamentally rests in the hearts and minds of “the people,” and not in the structures of governance or the individuals who have been temporarily elected or appointed to public office. Thus, an act that leads to the formal termination of one’s citizenship, should, if it must be carried out, fall upon the shoulders of all the citizens/members of a community and not a handful of tribal officials since such an act reflects the severance of an individual’s political and economic relationship to the entire nation and not just officialdom.

That said it seems clear that native disenrollments will continue unabated until and unless a more powerful countervailing force emerges at the national level--in the form of a congressional act or Supreme Court ruling--that might stymie the ever expanding number of tribal disenrollments.

In previous writings I have urged tribal officials to pause and reflect on the history, practice, and especially on the rationales they have been invoking to justify these dismemberments, since such draconian measures were rarely carried out historically among native peoples because our ancestors emphasized healing and restorative justice as a way to restore balance and community harmony.

Enter Vine Deloria, Jr. Deloria was one of our gifted philosophers and he produced many works like The World We Used to Live In that improved the lot of Native nations. He was a powerful advocate of native self-determination (individual and collective), but he also believed that governments and governing officials--indigenous and non-indigenous--needed to act with integrity, be accountable, and focus on maturity in all their actions and policies.

In an article in 2001 he urged readers to think imaginatively if we expected to make any real improvements in the conditions bedeviling our nations. He noted that “all things are possible but people have to think beyond the confines of where their minds are at the present time …” in order to change conditions for the better.

His comment along with conversations with several good friends, and given the current political landscape in which several thousand bonafide native individuals who have been disenrolled face a dire situation in which there are currently no effective avenues available to them to secure any semblance of justice, prompted me to consider some alternative organizational arrangements.

But two options may be available to native disenrollees who seek to restore, at the very least, their federally-recognized status as natives, if not their tribally-derived citizenship. A provision in the Indian Reorganization Act (IRA) of 1934 provides the first potential route. Section 19 of the act provided three definitions of the term “Indian.” First, it included “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.”

Second, it applied to all individuals who were “descendents” of those members who, as of June 1, 1934, resided within a given reservation’s borders. And third, and of a special importance for our purposes, the term included “all other persons of one-half or more Indian blood.”

While the IRA has been amended several times since 1934, the definition of “Indian” has not changed appreciably. In Title 25 of the Code of Federal Regulations (2011 ed.), the term “Indian” is defined in two ways: “all persons who are members of those tribes listed or eligible to be listed … as recognized by and receiving services from the BIA … and “any person not a member of one of the listed tribes … who possess at least one-half degree of Indian blood” (25 CFR 81.1 (i)).

I am familiar with the one-half blood category because some of my own people, the Lumbee, who were not formally recognized by the U.S. as a nation in 1934, did apply for individual federal recognition under this provision and, after many years, eventually compelled the BIA to recognize them in the 1970s. They received some financial benefits as a result.

Current disenrollees who believe they meet the scientifically and politically problematic one-half blood quantum threshold, might consider invoking this provision as a way of forcing the Department of the Interior and the BIA to meet their political and economic, if not their cultural needs. Such a challenge might also allow an assault on the very notion of “blood quantum” itself—a phrase of dubious scientific and social credibility.

The second process that might prove useful also stems from the IRA period. The IRA did not initially apply to most Native nations in Oklahoma. But tribal complaints led Congress to enact a law two years later, the Oklahoma Indian Welfare Act (OIWA), which extended the principles of the act to the native peoples in Oklahoma, if they voted for it. The act allowed recognized tribal nations or bands to organize and to adopt constitutions and bylaws if they so desired.

Article 4 of the OIWA laid out an organizational path that a group of Native disenrollees might be able to follow to meet their needs and provide for a restoration of federal services and benefits. It declares that ten or more Indians “who reside within the state of Oklahoma in convenient proximity to each other may receive from the Secretary of the Interior a charter as a local cooperative association for any one or more of the following purposes: Credit administration, production, marketing, consumers’ protection, or land management.”

By organizing thus, a culturally and politically-related group of disenrollees, living in “convenient proximity,” of course, would be able to avoid the rigorous and highly politicized federal acknowledgment process since they would not be pursuing recognition as a “tribe,” but would instead be asserting their right to organize as an economic or political entity in order to receive needed benefits and rights.

Neither path is ideal, but until and unless native governing officials return to the values that once precluded such egregious violations of their citizens’ own identities, and until and unless Congress or the courts step in and provide a fair process that disenrollees can participate in to have their grievances heard, it behooves the disenrollees, the Department of the Interior, and the federal government to consider alternative arrangements to support the inherent civil rights of these put upon individuals.

Professor David E. Wilkins holds the McKnight Presidential Professorship in American Indian Studies at the University of Minnesota. His recent book publications include American Indian Politics and the American Political System, 3rd ed (co-authored with Heidi Stark) (2010), Documents of Native American Political Development: 1500s-1933 (2009), and On the Drafting of Tribal Constitutions (by Felix Cohen) (2006).
 

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Anonymous's picture
Waste Ozu! Good One!
Anonymous
Two Bears Growling's picture
There ARE reasons for a banishment my friends. Just research our various histories & reasons why an individual or group of individuals were cast out. However, usually before things went that far, those people & groups usually loaded their things up & left, went to another area & started their own band to some degree. There are just so many alpha's a camp can deal with before things start to boil over I always found. Same goes for having too many women in the same kitchen as well! Sometimes folks have to agree to disagree & move beyond a issue, if not, it's time to split the camp. Too many chiefs & not enough Indians as it were, or too many cooks stirring the stew leads to quarrels & other prideful behaviors. We must always realize that the Great Spirit is in control of everything in this Universe. As such, we need to listen with our hearts & spirit, doing what is best for our people. Sometimes it means folks need to be humbled & sometimes it means the camp should split. Distance makes the heart softer & once more a people can come together with gladness of heart & back to where we all need to be: Focusing on our Creator, our people & our families. Being a person filled with kindness, compassion, love & taking care of one another my friends.
Two Bears Growling
Anonymous's picture
I disagree with Professor Wilkins on one point and that is his statement that "tribal termination via disenrollment of a bonafide native individuals is the purposeful destruction of the political and economic identity of a TRIBAL CITIZEN (emphasis added). I don't believe that the disenrollment of heretofore "tribal citizens" is only the destruction of the political and economic identity of the disenrolled citizens, but is also ultimately destrutive of the existance of the Tribal entity. This is especially ture when the Tribal entity has previously recognized those citizens as "members" for Federal Recognition purposes, settlement purposes, funding purposes and political purposes. Such "withdrawal" of status implies that the previous "integrity" of the Tribal Political Entity was based, in part, on fraud and may give cause for re-examination of Tribal status. Re-examination of Federal Recognition Status is a precedent that has already been set. The Eastern Pequot and the Schagticoke tribes were "recognized" and, at the urging of then Connecticut Attorney General, Richard Blumenthal (now Senator), their recognition was "withdrawn". Disenrollment is self-termination, just as "blood quantum" is self-terminaiton.
Anonymous
Anonymous's picture
I am shocked that this concept of dis-enrolling membership is even considered! Wow! Its reminds of the book "Pedagogy of the Oppressed" which is simply the Oppressed leading the Oppressed. It's a dictatorship that violates membership civil rights. Indian Country needs to go back to common sense, respect, traditional values and the sacred. All livings things are sacred. We get caught up in the non-Indian concepts and do more harm then good to our people. Our tribal leadership cannot control our freedom of speech. The membership is the government that rules the elected officials. For some reason we forget that. I'll pray for all of those who get dis-enrolled. Mbear, Blackfee/Sioux
Anonymous
Anonymous's picture
wow
Anonymous
Anonymous's picture
Great information as this is a perfect example of the historical boiler plate Colonized Tribal Constitutions that were forced upon our tribal governments by the BIA. Plus the majority of Tribal Governments officials were survivors of the U.S. Genocide and forced to accept treaties and Colonization just for the sake of their tribal survival, they where unaware of the long term impact of excepting these constitutions as is and not allowed to including our aboriginal governance. Plus in California home of the Un-ratified Treaties many different tribal groups were forced into one small Rancheria Community and had to accept the made up names (Pomo) in order to also save their families, now these are some other reasons why some of these families that are being dis-enrolled also. All done by the BIA because they didn't want , 200 tribes in Claifornia. "All My Relations"
Anonymous
Anonymous's picture
Keep your heritage and never give it up. My ancestors were Native American they did not sign the documentation thinking it would harm them down the road. My Grand Mother's name was Ivester. I have seen papers where they once owned Tallulah Gorge in Georgia, the Government took it unlawfully then gave it back after realizing they took it wrongly,then they passed Eminent Domain and took it again and gave them $7000.00 dollars for it..They ripped them off. I know where directional rocks are and many places unknown to whites and was told never to tell. So, I plead never give up who you are. Teach your language and learn your ancient ways. God will take over again and you can be a proud nation again..I am very proud my relatives and the lives they talk about. Hold your heads up and let it be known who you are a Great People.. and Native American will need this information.
Anonymous
Anonymous's picture
hi im stephen ,and i live in sacramento california and im nisnan and miwok ever sence my people were given our soverigty back the racist white people from the county tried to say we arent indian and ive been racially attacked on the streets and my famliy threatned
Anonymous
Anonymous's picture
This is a courageous and much needed article -- thank you, Prof. Wilkins. I'm struck by the irony of this statement: ". . . the Bureau of Indian Affairs will not divulge the data [about disenrollments], asserting that it is an internal matter left to each native community." How can it be that the BIA is minutely involved in verifying and certifying each individual tribal member's genealogy during the process to grant federal acknowledgment to a tribe and then turn around and claim disenrollment is an "internal matter"? There's a profound disconnect here.
Anonymous
Anonymous's picture
This is such a sad day in history to witness the Disenrollment of ALL the Nooksac Members one being a man I date Dante Narte he has made and raised his 2 young children by exercising his rights as Nooksac Member by being a fisherman for over 30 yrs! not only has he raised his own family but he is/ was the top fisherman in Nooksac he owned 3 boats that employed family/non family members who also had children/grand children to support and raise he also kept all local business with in our communtee amployed by buying gas at local gas station his bait's,food for crew etc....his boats were all STOLEN by yet another White Man who forged "BILL OF SALE" off a "LEASE AGREEMENT" and The Local Harbor opened up all his lockers and released all his gear totaling amounts well into the 300,000.00 off one Frudulent Paper that said he SOLD ALL HIS GEAR for 1.00!! you'd think the one dollar would of raised some kind of suspension well it didn't because as far as WHATCOM COUNTY POLICE/HARBOR figured in their small minds is it's just another INDIAN OFF the WATER and NOW WE HAVE ANOTHER WHITE MAN DISENROLLING 306+ Nooksac Memebers and did NOTHING to HELP DANTE out when his stuff was STOLEN!! all because they new his family was being disenrolled BUT the question is WHY is a ADOPTED NON NATIVE "INDIAN" get to make that decision on who gets to be an "INDIAN" sorry but history states that Columbus discovered America when in reality we as Native American's Discovered him and his people starving,sick w/unknown deseases that infected OUR PEOPLE but having the generoisity that we our Ancestor's had opened their loving arms and took these people in to help them and look what we get in return Discrimination,Assimilation once again by another GENERAL CUSTERED!! why can't that ugliness just stay dead why do we allow the WHITE MAN to teach us such hate
Anonymous

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