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