Auditing Tribal Sovereignty
In 1977 preeminent Native theorist Vine Deloria, Jr., was asked to write a paper about the current state of Indian affairs in the U.S. Deloria, already famous for his ground-breaking Custer Died for Your Sins, commenced to craft an essay which tackled the most difficult questions that bedeviled Indian Country—issues like federal recognition, membership, Native claims against the US, rejuvenating a land base, etc. His analysis was astonishing for its foresight and simplicity. It is also disheartening to realize that while piecemeal progress has been made on some of these issues they remain as muddled and as complex nearly four decades later. While this column lacks the space to elaborate on the significant benefits that might still accrue if progress could be made on all these subjects, I encourage readers to get a copy of this report and read the no-nonsense rationales behind why Deloria believed these topics warranted attention.
For now I want to focus on to his recommendation that tribes clarify their memberships. This is important because the bona fide constituency of a given indigenous community and just who has the authority to decide who belongs are questions that are currently burning their way through Indian Country with a vengeance.
Deloria’s essay appeared two years after Congress enacted the Indian Self-Determination Act of 1975 which ostensibly was designed to encourage Native peoples to assume a greater role in administering their own affairs rather than relying on federal agencies. And in the last four decades many Natives governments have indeed used the Self-Determination Act and the subsequent Self-Governance Act to exercise political autonomy for the betterment of their communities.
Many tribal nations are involved in examining their membership criteria, some with the legitimate goal of cleaning up the mess that results from identifying citizens based on often cobbled-together records that are usually a combination of oral accounts, personal records, and sketchy federal lists. It is a momentous task that deserves the utmost attention and care. In his description of the history and evolution of tribal membership, Deloria observed, “The present membership of most Indian tribes is a result of fortuitous circumstances, a dash of federal record-keeping, political favors among tribal members, and irrational administrative decisions made by federal employees.”
Unfortunately, there are some instances where it appears this sacred charge may have been, at best, misunderstood and, at worst, misused. Some leaders have even been accused of seizing the opportunity to disenroll members or, as I prefer to call it, dismember their nations for arbitrary, greedy, or political reasons. While the circumstances were different in pre-casino 1977, Deloria called out the same behavior, saying, "The Indian exclusivity stance is very peculiar. …Indians, their eyes on college scholarships, oil royalties, and special privileges, have taken the reverse tack, eliminating peoples unjustly from participation in the affairs of their communities.”
This could be remedied, he then suggested, if each Native community were to prepare an adequately documented roll with the help of qualified scholars. He urged that appropriate federal officials work closely with tribal peoples to help assure that the final rolls accurately “reflect the historical circumstances of each tribal situation” and emphasized that all the necessary federal, tribal, and private records be used to create a careful and accurate membership roll.
While Vine was a visionary, he was also a pragmatist, fully understanding that it would be challenging for all tribes to undertake this process. But, I believe he would have been truly astounded at the methods now being used by numerous tribal nations to decide who is or is not a Native citizen.
There is no greater responsibility for a tribal leader than to be a steward of their nation’s citizens/members. Yet in the area of constitutional reform and development, tribal membership, and enrollment policies and practices, many tribal governments have entrusted these most intimate of governmental responsibilities to outside organizations like CSN, Inc. (Constructing Stronger Nations)-DCIAmerica, the Harvard Project for American Indian Economic Development/Native Nations Institute, Automated Election Services, the Falmouth Institute, J. Dalton Institute, and others. In the case of membership, some of these for-profit organizations conduct, what I would suggest, are privacy invading enrollment audits.
These outside audits can be time consuming and expensive. For example, the Falmouth Institute, known for its training programs, recently conducted a nearly eight-year long enrollment audit for the Eastern Band of Cherokee Indians at the cost of $900,000. The review of the nearly 14,000 people on the tribe’s roll concluded that more than 10% of the members needed to correct their status and at least 300 listed members appeared to have no direct connection to the 1924 Baker Roll, the tribe’s official foundational enrollment document. Ironically, this roll was conceived as the tribe's final roll when seated in preparation for their formal termination by the U.S. Congress, a process the Cherokees were fortunately able to fend off.
Worst of all, the costs of this outside scrutiny are not limited to money and resources; there is also a debilitating toll exacted on the morale and cohesiveness of the community. The years of uncertain membership status eats away at the very fabric of trust and kinship that define a tribal nation. Leaders who abdicate their responsibilities to auditors may even leave elected office and pass the problem on to the next regime. Over time, there is a real danger that these auditors are the only ones with the long term knowledge of the membership situation—a frightening proposition. No sovereign nation should ever be in such a vulnerable position.
What precisely is an enrollment audit? Why are so many tribes turning to outside corporate and other organizations to investigate internal matters that should rightly be the province of tribal entities? Who are the consultants, lawyers, and accountants who provide advice and counsel to tribal governing officials? Are problems aggravated—either deliberately or through ignorance—by third parties who stand to make more money from a prolonged conflict? And most fundamentally, is reliance on so-called outside “experts” a hallmark of self-determined nations or an indication of ongoing dependency?
These vital questions need deep investigation because Native governments, sovereign entities, are increasingly entrusting key elements of their fundamental powers of governance, membership determination, and constitutional reform to for-profit outside businesses. No matter how well respected, these entities are making money from the strife and confusion we have inherited and now appear to be adding to ourselves. Have our peoples managed to survive centuries of ethnocidal onslaughts only to be stymied in these modern times by flawed records, corporate intrusions, greed, and political infighting?
The very term “audit,” according to Black’s Law Dictionary, means “inspection and verification by IRS of a taxpayers return or other transaction possessing tax consequences.” It also means “systematic inspection of accounting records involving analyses, tests, and confirmation.”
But citizenship or membership in a Native nation is, or should be, something much greater, something more meaningful, than an accounting transaction.
While tribal nations, like states and the federal government, have every right to outsource services like transportation, prisons, wastewater treatment, public benefits eligibility services, even law enforcement, such privatizing entails real risks. It frequently raises costs. It does not always mean that the task is done better. It is sometimes a more wasteful approach and, in fact, there is frequently a decline in the quality of services under private contractors. It sometimes leads to corruption and unscrupulous behavior—anyone remember Jack Abramoff and Michael Scanlon?
Deciding who belongs as a bona fide citizen/member of an indigenous nation, we are told, is one of the most fundamental powers of a tribal nation. The difficult burden of creating an accurate tribal roll, as Deloria noted earlier, is an essential step in the maturation of Native nations.
There is more than sufficient knowledge within Indian Country to see that the important task of comprising an authentic and verifiable roll be done without having to resort to paying outside organizations or consultants, even those who identify as being Native or Native-owned. These third-party corporate entities will never have the same core values, historical understanding, or fundamental commitment that a group of competent, rightly empowered, and fully-trained tribal members possess as long as they are armed with the necessary historical data and member-given authority to complete the task.
Tribal citizens must provide this authority by demanding that their leaders develop and employ sensible, transparent policies that offer a realistic pathway to gain or retain citizenship, as well as a fair process to question and appeal decisions. No nation should pit sovereignty against human and civil rights. In Deloria’s words “... continued deprivation of the rights of individual Indians by tribal governments using the shield of tribal sovereignty is much more destructive of Indian communities in the long run than revision of the rolls.”
Let us follow Deloria’s good advice and seek to clarify not deplete our nations’ memberships and let us not continue to engage in the hiring of outside firms for intimate and internal decisions such as membership since many of these businesses are, of necessity, generally more committed to revenue generation than indigenous nation membership clarification.
We cannot consign the re-membering of our nations to anyone other than ourselves. Our private citizenship/membership rolls, with all their complexities, do not exist for profit. Our sovereignty is ours alone to responsibly wield.
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