Part two of a series
By Robin A. Ladue
Tribal disenrollment is “a powerful demon,” says Eddie Crandell Sr., who represents the California Bay area Robinson Rancheria Casino.
Crandell made the comment at a recent forum held on the practice of disenrollment of tribal members, which was sponsored by the Indigenous Peoples Law and Policy Program at the James E. Rogers College of Law and the Department of American Indian Studies.
It is estimated that 11,000 tribal members have been disenrolled from their respective tribes. While there are strong pushbacks against this practice, the cancer on tribal people that disenrollment brings is destroying people, families, communities, and tribes. There appears to be little data on what tribes are disenrolling because it is considered a sensitive and contentious issue. That is an understatement.
Alice Langton-Sloan of the American Indian Rights and Resources Organization (AIRRO), says at least 39 tribes in California and 15 from other states have disenrolled members.
The reasons for disenrollment include:
• Reducing the number of tribal members who might benefit from the vast sums of money generated by gaming operations
• Bitterness and settling old scores between tribal members and families
• Securing power by getting rid of certain opposition or voting blocks.
Some attorneys, including Robert A. Rosette, founding partner of Rosette LLP, say disenrollment procedures are a part of tribal sovereignty, but attorneys who assist or work for tribal councils must follow their own laws and not violate due process.
The National Native American Bar Association (NNABA) issued a resolution in 2015 that it is immoral and unethical for lawyers to encourage or take part in disenrollment processes that lack adequate due process, equal protection or a remedy for the violation of the civil rights of tribe members.
However, this has become more the rule than the exception in the ugly world of disenrollment. The list of tribes that where questions have been raised about the process include:
• Picayune Rancheria of Chukchansi Indians, population reduced from 1,850 to 750
• Nooksack Tribe, population of 2,000 reduced by 306
• The Confederated Tribes of Grand Ronde, population of 5,200, had 67 members disenrolled in 2014 and reinstated in 2017
• Pechanga Band of Luiseno Mission Indians, 1,350 members in 2006 and more than 230 members disenrolled
These are only a few of the dozens of tribes that have or are in the process of disenrollment. While tribal governments often deny that disenrollment is based on the economics of gaming, disenrollment rates have grown and spread from tribe to tribe to tribe since tribal gaming began to take hold in 1988.
More than 10 percent of the Nooksack Tribe of Western Washington was disenrolled by the tribal council. After a four-year battle, it appears that the tribal members who have been disenrolled will lose their housing, schooling, health benefits and income from the tribe’s Northwood Casino. The group says it was arbitrarily disenrolled by the tribal council.
The tribal council, led by Bob Kelly, is serving past the terms outlined in the tribal constitution, says the Department of the Interior, which has refused to recognize or fund the tribal council. When other agencies followed suit, Kelly and his group filed a lawsuit, charging that the actions taken by the department caused the tribe to lose nearly $14 million dollars.
A memorandum filed by the Department of Interior in the case says the former Nooksack Tribal Council chose to unilaterally “suspend” the 2016 tribal elections for expiring council seats and the tribe has lacked a government recognized by the United States since March 24, 2016.
On June 27, a federal judge stayed actions in the case for 120 days so the two sides could negotiate and make recommendations on the disposition of the lawsuit.
On June 16, National Indian Gaming Commission ordered the tribe’s casino closed.
The NIGC regulators say the lack of a legitimate governing body was one of the reasons, citing the Department of Interior’s stance. In addition, the commission indicated that the tribe failed to conduct background checks on management officials who oversee the casino and remedy drinking water quality violations, which were cited by the Environmental Protection Agency.
A consequence of the casino closing is the loss of a hundred jobs, as well as income for the tribe. While the tribal council’s stance has been that those members who were disenrolled from the tribe lack “sufficient blood” or ties, one could argue that greed, bad blood and more than 150 years of fighting have led to the ongoing disintegration of the Nooksack Tribe.
While it would be tempting to see the outcome of the Nooksack “tribal council” as a singular situation, it is not. The question has now become what rights do disenrolled tribal people have and what redress is available to them to regain their tribal status.
Given the tactics of many tribal councils, it appears that there are few options and little hope for those whose tribal identities, family and community ties, health and housing benefits, income, and history have been stripped from them. However, there are glimmers of hope in a bleak situation. The actions taken by the federal government to no longer recognize the tribal council of the Nooksack tribe may force elections and reorganization and, hopefully, reinstatement of the Nooksack 306. Certainly, the message to the Nooksack tribe is to take a step back and assess the priorities of the tribe.
In another hopeful situation, the Grand Ronde tribe has recently reinstated disenrolled tribal members who were descendants of one of the 1855 treaty signers, Chief Tulmuth. Chief Tulmuth was murdered prior to moving to the reservation and was not included on a base roll that the Grand Ronde tribe uses to establish membership. Because of his death and his failure to appear on the rolls, the Grand Ronde tribe decided it could disenroll his descendants.
The reinstatement of the disenrolled members came about nearly four years after the original action. The three-member Grand Ronde court of appeals stated that the tribe had “waited too long—27 years—to correct the error that allowed the 66 to be enrolled.” While the tribal members are, once again, a part of the tribe, it does not change the damage done to the people who were enrolled, the relationships of people within the tribe, or what will likely be an ugly rift for many years to come.
Many of the tribal governments that are disenrolling are describing it as a right of tribal sovereignty. The ability of a tribe to establish its membership criteria is an important right. However, as the three Grand Ronde appeal judges stated: “Tribal citizenship is as important as is U.S. citizenship.”
Based on this statement, it should be on the tribe to carry the burden of proof if it is seeking to disenroll any member.
It is the viewpoint of this writer that it is now incumbent on Indian Country to strike down the practice of disenrollment. Indian Country cannot afford to lose membership. Given the pressures of politics, land grabs and tribal economics, it is crucial that tribal governments remember our history and remember our traditional values. If the trajectory of disenrollment does not change, there will likely be more tribal members stripped of treaty protections; health, housing, and education benefits; employment and the receipt of other benefits.
Indian Country has fought long and hard for survival. To allow tribes to take
away the Native identity from its members, it is no less cultural genocide than that perpetrated by the U.S. government from the first day of invasion. ♦