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Most of the tribal governments disenrolling their citizens seem willfully blind to so many ironies that it feels futile to point out the greatest irony.

Disappearing Indians, Part IV: When is Enough Too Much?

Steve Russell
8/11/15

You go to bed one night as an Indian and you wake up assimilated beyond the wildest dreams of Richard Henry “Kill the Indian in him and save the man” Pratt. In the personal sense, it’s hard to imagine your tribal citizenship gone. The tribal structure, what is left of it after over four centuries of being shoved out of the way, remains—but you are no longer part of it, your ties to that sordid history severed by your own relatives.

American Indians are an ongoing case study in suffering as a bonding experience, a five hundred year boot camp that ought to have built solidarity. The so-called New World was already occupied when the Europeans arrived. It quickly became less occupied as diseases from far away took their toll. Entire cultures disappeared, the last generation disfigured by smallpox even among the few survivors. Slowly, too slowly to save some peoples, our bodies adapted to the new pathogens. Some people fled west and some survived with their hard-won immunity. Indians survived.

When diseases could not extinguish the peoples of the Americas, some of the colonists took direct action toward that end. There were Indian wars beyond counting. At the edge of the frontier, bounties were offered for “redskins,” with the pay for assassins determined by sex and age of victim, with nobody spared. After gold was discovered in California, the settlers hunted for Indians in bands of armed men who killed indigenous Californians also without regard to sex or age. Some people survived under the protection of the Catholic missions. Some surrendered and accepted exile on reservations. In 1890, near Wounded Knee Creek in the Great Sioux Nation, the last major massacre of non-combatants was photographed, and the pictures made all the difference to the project of extermination. Indians survived.

Missionaries corrupted our sacred ceremonies; boarding schools punished our children for speaking our language; the U.S. government forced the individual allotment of tribal lands and used conditions on individual plots to set the ticking time bomb of blood quantum. Still, Indians survived.

After over 400 years surviving termination attempts, we have begun to terminate ourselves.

The missionaries failed when we syncretized Christianity. The boarding schools failed when we turned education to our own uses. Tribal governments dodged the blood quantum bomb by changing standards or changing the method of calculation. Each colonial disease produced not a successful genocide but, instead, a corresponding antibody.

The colonial diseases for which we failed to develop antibodies were racism, lust for power and greed. Whether the rationalization was the fantasy of race, the abuse of power, or the division of limited assets, we began to terminate ourselves, cutting off thousands of Indians from tribal relations.

Many if not most tribes traditionally imposed banishment for extremely serious criminal offenses, but it was a punishment seldom invoked because it amounted to a death penalty. A tribal person cut off from the tribe becomes a walking ghost.

The modern terminations, also known as “disenrollments,” reflect a convergence of interests between the settler governments and the tribal governments. Converging with the colonial interest in disappearing Indians, at first to acquire their property and later to cut off further compensation for it, tribal governments fell into the hands of individuals greedy for power or greedy for money. Disenrolled Indians were expelled from the body politic simply for being in the way.

RELATED: Disappearing Indians, Part II: The Hypocrisy of Race In Deciding Who’s Enrolled

RELATED: Disappearing Indians III: Carving Up the New Buffalo

Tribal citizens gotten out of the way by disenrollment have had little recourse. Theoretically, the tribal courts should correct manifest injustice, but many tribal justice systems lack a tradition of an independent judiciary. It is an acid test for fairness in a justice system when the government the judges represent can lose a lawsuit. In too many tribal courts, a judge who rules against the executive is out, like the Cherokee judge who wrote the careful opinion that explained why the freedmen were citizens of the Cherokee Nation…and found herself not reappointed.

Tribal governments, like state and federal governments, enjoy sovereign immunity and so cannot be sued unless their own law provides for it. Most citizens of all levels of government do not understand this, and that is why the federal government and all the states have tort claims acts that enable lawsuits in routine cases. Tribal governments, not so much.

The U.S. Supreme Court arrogated to Congress the power to limit or eliminate the sovereign immunity of tribal nations. This power came from the magic pen of Chief Justice John Marshall, rather than the text of the document, but it remains the law today. Asked whether, in the case of disenrolled tribal citizens, Congress authorized a lawsuit under the Indian Civil Rights Act of 1968, the SCOTUS demurred in Santa Clara Pueblo v. Martinez.

RELATED: Meet The Father of American Indian Control Law: John Marshall

RELATED: Disappearing Indians: Who Decides Who’s In and Who’s Out?

With the Santa Clara case and the lack of a federal response to it, the settler government invites us to disappear as many of our citizens as we wish. Whether they are relatives, distant or close, or whether they share a history of hardship that defines the tribal nation, are not issues to the U.S. government if they are not issues to us. As The New York Times put it back in 2011, when disenrollment was surfing across California on a wave of new casino wealth, “Congress has shown little appetite for interfering in tribal membership issues.”

If it’s going to stop, we the people have to decide enough is enough, and there are some clues that tribal citizens are figuring it out and some tribal nations are beginning to act accordingly. The Spokane Tribe’s newspaper, The Rawhide Press, recently reported that the Spokane Constitution has been amended by a vote of tribal citizens to bar disenrollments. The vote was 309 to 268, and that seems to me scary close, but it’s change that can’t be reversed by a different tribal council.

The Spokane Tribe’s decision to elevate protection for tribal citizenship to the Constitution followed the lead of the Passamaquoddy Tribe of the Pleasant Point Reservation, which added to their already expansive Bill of Rights “…the government of the Pleasant Point Reservation shall have no power of banishment over tribal members.”

The Federated Indians of Graton Rancheria had the foresight to amend their constitution to limit disenrollments back in 2013, before casino money started rolling in. One serious protection is a limitations period of three years for claims of “fraud or mistake,” claims that other tribes have used to disenroll dead people for the purpose of disenrolling their descendants. The disenrollment provisions cannot be changed without a two-thirds vote of the General Council, which consists of all adult citizens of the tribe. Tribal Chairman Greg Sarris explained the rationale in the tribal newsletter:

Why not take care of all our members on our current rolls? ... if we start to decide who is in and who is out, what are we doing finally but continuing the colonizer's work of dividing and conquering, of separating families, of breaking up potentially stronger tribal communities?

Indian law practitioners Gabriel S. Galanda and Ryan D. Dreveskracht published a recent article in Arizona Law Review on the history and the law of disenrollment and concluded that there are no clear and effective remedies now.

In April, the National Native American Bar Association adopted a resolution reciting the right to tribal citizenship recognized in the United Nations Declaration on the Rights of Indigenous Peoples. NNABA declared:

…that it is immoral and unethical for any lawyer to advocate for or contribute to the divestment or restriction of the American indigenous right of tribal citizenship, without equal protection at law or due process of law or an effective remedy for the violation of such rights.

Unfortunately, there has never been a shortage of non-Indian lawyers willing to divest Indians of their rights.

When the disenrolled cannot resort to tribal law to protect their citizenship, state law is out of the question, because the U.S. Constitution vests authority in the federal government to regulate commerce with Indian nations, a provision molded by the Supreme Court into “plenary power” over Indian affairs.

Congress could act by, for example, expanding the Indian Civil Rights Act to cases of disenrollment, conferring jurisdiction on federal courts. While that appeals to a sense of fairness by submitting the question to an authority that appears to have no stake in the outcome, the traditional idea of sovereignty would not admit any outside authority to rule on tribal affairs.

There is another problem. It’s reasonable to question whether the United States “has no stake in the outcome.” The U.S. has had an “Indian problem” throughout its history, a problem that can only be solved by assimilation of the surviving indigenous population. For Indians cut off from tribal relations, assimilation is the only choice.

Galanda and Dreveskracht suggest an all-Indian appellate court system established by agreement among tribes to hear disenrollment appeals, citing a 2010 article by Suzianne Painter-Thomas, the same year I proposed all-Indian appellate courts of general tribal law jurisdiction in my book, Sequoyah Rising: Problems in Post-Colonial Tribal Governance.

Developing cures for the disenrollment epidemic is not as much a problem as developing the will among Indian nations to use them. Most of the tribal governments disenrolling their citizens seem willfully blind to so many ironies that it feels futile to point out the greatest irony.

The Cherokee freedmen disenrollments reveal an Indian nation abrogating a treaty and disenrolling on a racial basis, an Indian nation historically disadvantaged by both treaty abrogation and racism.

Disenrollments over greed for casino cash to make the slices of per cap pie bigger threaten the very sovereignty that made the casino lawful in the first place. The attack ads where the modern Indian fighters claim discrimination against white people write themselves.

What irony could possibly make those appear small by comparison? Indians survived. Indians survived hundreds of years of homicidal policies only to use their remaining sovereign power to enact suicidal policies. The best efforts of the colonists to terminate us came a cropper and we invented ways to terminate ourselves.

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azpark's picture
azpark
Submitted by azpark on
Steve Your series of articles on disenrollment have made a good read but as you have discussed in your book, disenrollment is only one of many symptoms of dysfunction in tribal governments. Your statement “Developing cures for the disenrollment epidemic is not as much a problem as developing the will among Indian nations to use them” applies to all the other symptoms as well. The more I study this issue the more convinced I am that there is a group of leaders; tribal, regional and national that are basically happy with the current state of affairs. I refer to them as the Indian lobby. Why else would the NCAI President, Brian Cladoosby say in his 2014 State of the Native Nations address “In this nation-to-nation relationship, tribes are doing our part… and we expect the federal government to do theirs”? Tribal leaders are happy with the unprecedented power and control they have over every aspect of tribal life. Piecemeal solutions may provide piecemeal results but I foresee a day of reckoning if the Indian lobby doesn’t get its house in order, the Congress or an already hostile court will do it for them.

swrussel's picture
swrussel
Submitted by swrussel on
I would love to disagree with you but I don't make a practice of engaging in arguments I can't win. I really wish I could say you are off base, but you are not. I wish you didn't hit the nail on the head, but you did, and wishes are not reliable bases for policy.
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