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Disenrollment Is Bad for the Bottom Line

Jared Miller
9/28/13

If you are following efforts by the Nooksack tribal government to purge 306 members from its rolls, you probably hold one of two views on the matter.

You may believe tribal disenrollment is patently unjust and requires some kind of federal or international intervention on behalf of the “Nooksack 306.” Or you may feel that disenrollment is solely a matter for the Nooksack Tribe to sort out, and non-tribal authorities should stay out of it.

Allow me to propose a third possibility.

Disenrollment is a business matter. That’s because tribal governments abandoning members en masse will harm their own bottom line by engendering negative media and investor perceptions. More critically, they threaten the bottom line of Indian businesses everywhere. As such, Indian people and tribal governments across the country have an interest in seeing that ugly disenrollment fights like the one on the Nooksack Reservation in Washington State do not happen. They should act to protect that interest.

Nooksack tribal officials endeavor to end forever the affiliation of 306 members. Disenrollment by the tribe could mean loss of benefits like housing, healthcare and education. Even more painful, according to some Nooksack members facing disenrollment, termination of tribal membership means a heart-rending loss of formal contact with their community and their culture.

As expected, the Nooksack 306 are fighting hard in courts and elsewhere to maintain tribal connections, and to secure rights to all the tangibles and intangibles that emanate from their identities as tribal people. Lawsuits are pending in tribal court and tribal appellate court, as well as federal court.

The battle is a public one. Local reporters have been on the story for some time. On August 25, the Seattle Times waded into the fray with a piece detailing the saga. Even more recently, Al-Jazeera introduced its growing audience to the story. Suddenly, what was essentially a family fight has become a very public airing of Nooksack dirty laundry.

Reporters have focused on a couple of angles. Some highlight accusations that greed, corruption, and racism aimed at tribal members with Filipino ancestry are driving disenrollment efforts. Others report that Nooksack officials may have ignored their own laws by failing to provide due process throughout the disenrollment process. All the coverage paints an unflattering picture.

Similar stories are trending across Indian country. According to Stephen L. Pevar’s book, The Rights of Indians and Tribes, “thousands of tribal members have been disenrolled from their tribes, usually from those with profitable casinos whose remaining members would then receive a larger share of the profits.” Another noted Native American professor has called the disenrollment era a “sort of tribal civil war.”

So what can be done?

Predictions about the disenrollment trend are bleak. For example, University of Minnesota Professor David E. Wilkins, in a June 4, 2013 column for Indian Country Today Media Network, predicted that “native disenrollments will continue unabated” until either Congress or the U.S. Supreme Court intervene. His column suggests potential avenues of short-term redress for individuals facing disenrollment, but Professor Wilkins seems to assert that only federal authorities can provide comprehensive relief.

Let’s hope he’s wrong. For one thing, enrollment (or disenrollment) is a matter for tribes to decide. It is rarely advisable for outsiders to intervene in tribal infighting, and federal law is clear that non-Indian courts generally have no jurisdiction in matters of tribal membership (save for habeas corpus or a collateral federal question). Inviting Congress or the Roberts Court to intervene should send shivers up your spine.

Moreover, there is reason for optimism. Tribal governments have shown a stunning talent for pragmatism and savvy in matters of tribal business and finance. Walk into most any Indian-owned casino and you’ll experience a level of professionalism and service that scoffers never predicted, to cite just one example.

And let’s be clear: Disenrollment is a business issue. Ugly battles like the one at Nooksack have potential to deeply affect tribes’ bottom lines. That’s partly because non-Indians may view such controversies as indicators of greed and corruption. Investors may also conclude that partnering with a tribal government engaged in abandoning its own citizens is not worth the risk to investment.

And non-Indians viewing disenrollment through the lens of old stereotypes may extrapolate those notions to tribes generally. It shouldn’t happen, but it does.

There is a price attached to everything. Tribes mulling disenrollment need to focus on the cost to business. They must consider that disenrollment can spook investors, and the negative financial impacts can be long term, widespread and devastating. (Just Google “Nooksack disenrollment” to see what potential business partners will read when they research the Nooksack Tribe.) Native American leaders should pause to understand that a tribe going to war with itself drives down the stock price of all of Indian country.

In addition to financial interests, there is a real risk that Congress or the U.S. Supreme Court might one day make new law in the area of tribal citizenship. We just saw the Court diminish Indian child welfare law and tribal cultural identity in the “Baby Veronica” case. Now imagine how the Roberts Court might undermine tribal citizenship if given the chance.

For these reasons, tribal governments and tribal officials should employ the forces of regional and national intertribal politics to pressure officials pursuing disenrollment. It is time to pick up the phone, or the pen, or write an email. Get creative. Too much is at stake to remain silent.

Pressure on the Nooksack government should begin now. Journalists and potential Indian-country investors are closely watching this fight, and they will take note as it unfolds. It would go a long way to shape media and investor perceptions of tribal governments if the Nooksack government could wake up to the big picture and resolve its problems without throwing hundreds of members off the rolls.

But no matter where you stand on the Nooksack fight, putting an end to disenrollment is critical for the bottom line in Indian country.

Jared Miller is a lawyer practicing tribal law and federal Indian law in Washington State.

 

 

 

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Two Bears Growling's picture
There should be no disenrolling of any First Nations member without justice cause. It is what we called in the days of ancestors as a type of banishment. That is the most serious thing that can happen to a tribal member besides being executed as some were for very serious offences in the times of the ancestors. If someone has not been living in a bad way or done a very serious offence there is never a reason for this action against them. If someone HAS done a serious offence, brought shame to their family, clan or tribe or against the Great Spirit then I can see reason for this action of casting someone out of the fold as it were. As someone who believes in the ways of the ancestors I find this all a shameful action by a tribe throwing people off the rolls for no reason other than some political infighting on the tribal councils. Those tribes who are employing this method are being shameful, disgraceful & wicked. The Great Spirit knows who each of you are who ARE doing this! My counsel is for it to stop once & for all. It is 100% wrong & many times based on GREED. I know of a number of tribes who have such strict guidelines on becoming a member that unless you have a certain percentage of Indian blood they will not allow you to become a member even if you knew some of the language, culture, stories & history. I have known of other tribes who did not employ this method at all & welcomed anyone who could prove their ancestry, regardless of blood quantum with open arms. This is how it should be & was in the times of the ancestors. I wrote a commentary up some time ago that dealt with this matter. It had to do with being high-blooded, but low spirit or being low-blooded, but high spirit. Things need to go back to how it was in the times of the ancestors. Many times if someone lived in a tribe, took part in activities, could speak or were learning to speak the language, helped hunt, gather &/or prepare food, helped with protecting those in the tribe from harm, you WERE considered a member of that tribe & had all the rights & benefits of any other member of the tribe. This is how it should always be my friends. We shouldn't judge others by skin color or blood percentages. We should only look at how someone is living. Are they living in a good way that brings pride to their families, clans & tribes or do they bring shame, disgrace & a bad name to themselves, their family, clans & tribes? To judge someone by any other method is wrong & displeases the Creator. After all, we are ALL brothers & sisters because the Great Spirit made us all. Think about that my friends & put aside tribal politics & remember, does what we think, do & say bring pride of a good way or a bad way? Does a decision make our Creator pleased or angry? Take care my friends & may the Creator bless & keep each of you in His care as you each make choices in your lives today.
Two Bears Growling
ohhhreallyyy's picture
I couldn't agree more with Two Bears Growling's comment... In the case of the Nooksack fight was there a serious offense that deserves banishment? Banishment without justifiable cause especially to children and elders who have their identity, culture, and livelihood tied into their Tribe is one of the worst things one can ever do to a person or human being. At least when a murderer commits such a crime, the pain done to the victim is quick. What is happening to the disenrolled members is a pain that will last a lifetime and is much worse than being murdered. How does a Tribal government justify such an action. It is very shameful and it will affect them for the rest of their lives as well. Initially, their own words may cover up their actions but their conscious cannot be deceived. This is a lose-lose proposition. Disenrollment is the worst thing that can ever happen in Indian country. Ironically, considering all the wrong that has happened to any First Nation member in the history of time, this single action is the most catastrophic. It is worst than losing their lands and being segregated to a reservation. Losing one's identity is the worst thing that could happen. There is no excuse for this kind of action. As what is being witness in the media as the short-term affects will be overshadowed by what will happen over the long-term as it will produce no fruit and harvest bad seeds for generations to come. One can compare disenrollment and setting off an atomic bomb on a reservation as being the same and producing the same results. This is a plague that is destroying Indian Country. This so shameful.
ohhhreallyyy