Saturday, March 26, 2016

Separation of Powers In the Nooksack Tribe: Corrupt Council Runs Afoul of Tribal Law

“No Indian tribe in exercising powers of self-government shall ... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.”
 
Tribes laugh at this portion of the Indian Civil Rights Act, and deny with impunity, Native Americans rights under this act. An article in Indian Country Today, by Peter D'Errico detail the issue:

Let's look at how the Nooksack case plays into the negative stereotypes about Native legal systems:

On February 29, the Nooksack citizens targeted for “disenrollment” won an important motion in Nooksack Tribal Court, when Judge Susan Alexander affirmed their right to vote in the upcoming 2016 elections. But, apparently unbeknownst to these citizens, their lawyer, and the court itself, the Nooksack Tribal Council had taken steps on February 24 to disbar their lawyer.

On March 7, when the lawyers tried to file motions to get copies of council resolutions and related documents, the tribal judge said the council disbarment move prevented the court from accepting the motions, and that the citizens were now in a pro se status, i.e., they had to represent themselves.

The council did not directly deprive the Nooksack citizens of all legal representation, but it derailed their representation in the middle of the case. According to a statement filed in tribal court by the lawyers, the tribal council convened a special meeting during which it “resuscitated” a tribal resolution on business license procedures that had not been enforced for 30 years. The lawyers told the tribal judge their application for a business license had been returned by the Nooksack Chief Financial Officer, with a statement, “We…are not able to issue the requested license.”

The right to be represented by a lawyer in criminal cases has long been seen as fundamental, but representation in civil cases stands on a lower rank. Nevertheless, many jurisdictions provide a right to counsel in the most serious types of civil cases, such as termination of parental rights and commitment proceedings.
Read more at Indian Country Today  

20 comments:

Reinstatement_Restitution said...

Dollar General v. Mississippi Band of Choctaw Choctaw:

“...tribal courts are often subordinate to the political branches of tribal governments,” and “the content of tribal law is often knowable only to a few tribe members.”

Now the Supreme Court is hearing this case that may limit the jurisdiction of tribal courts. Dollar General is saying the tribal courts are often under the authority of tribal leaders and that compromises their ability to make objective decisions. Duh.

Dollar General is also saying that tribal law is often only known to tribal leaders, and that makes review and adjudication unfair to those that don't know the content of the law. Duh.

The tribal leaders are shooting themselves in the foot by playing around with their laws, stacking the case against members (or non-members if it is to their advantage) and then claiming sovereign immunity if anyone says that their actions are illegitimate. These are patently unfair actions and outsiders. like the Supreme Court, can see the obvious taint of corruption.

Soon tribal courts will have no jurisdiction over contracts and agreements with outside entities, and it is not the tribal courts fault. It is the fault of the leaders who undermine the judicial process.

There is a lot riding on the outcome of this Supreme Court case. It is difficult to foresee how this might affect "internal tribal matters." It might mean that disenrollees can claim that their tribal courts are unable to provide them with due process and that an external forum is necessary. That would open the door to scrutiny that most tribal leaders will seek to avoid at all costs.

To those OP posters who like to promote tribal sovereignty as the right of tribes, and disenrollment as a protected practice under tribal sovereignty, it is just these illegitimate practices that will lead to outsiders interfering with the self-determination of tribes.

At some point tribal members are going to have to put a stop to the corrupt and unethical practices of their leaders or face the specter of deep infringement on the sovereignty. Outsiders looking in see tribes as corrupt entities with unfair and unjust laws, with tyrannical leaders, and memberships cowed by the threat of disenrollment. Those outsiders with the duty to promote justice and fairness will intervene at some point. Especially since there are federal dollars involved and a lot of benefits being distributed to tribes that hurt their own people.

Those dollars are intended to help people who have been harmed by the previous policies of the federal government. They were never meant to enable evil leaders to harm their own citizens.

Anonymous said...

R and R

You sound like the old anti-Indian policy makers who touted claims and ideals of justice by interfering with the savage, backwards, and unjust ways and culture that Native Americans, and their tribal governments represent. I guess we are all still backwards and need the Great White Man to intervene and put us all straight and on the right path, because we obviously don't know what we are doing when we play governemnt, law, court, or even Indian...lol.

Anonymous said...

Some Native American Tribal Leaders today are nothing like the leaders used to be. Before the mexicans or the whiteman came, the leaders of tribes,ig. Chiefs, Elders, Shaman, they all had a general respect from their people and they were good leaders that cared about the tribe. They loved their people and for the most part, their people loved them. The whiteman imposed their Government upon the Natives who in turn had to learn that way of governing and now tribes are like the US Government, except some are way worse and have become a dictatorship through the veil of sovereignty, so now we as individual Indians are facing no rights or due process, do we fight it because we know we are right, or do we let it go and let the corruption just continue and our heritage to be stripped from us leaving us tribeless Indians? We fight and fight until the veil is lifted enough for us to get in and win what is truth and then help the tribe to heal and throw that veil back down but in the right way, so that all true Indians are represented, and evil cannot takeover.

Reinstatement_Restitution said...

You have obviously misunderstood my comment. The idea is for Indians to fix their own problems so that the external sovereign sees no need to interfere. Tribal leaders that circumvent their own laws in order to remove attorneys in active litigation are not acting in beneficial governance. They are acting out of personal interest and malfeasance. The external sovereign sees this as a corruption of the democratic process.

But you probably don't care about the democratic process, as it seems most important to you to protect the right of tribal leaders to harm their own people. When a tribe adopts a governing document that embodies the democratic process, then it is up to sworn leaders to uphold the laws embodied in that governing document. Even if that form of government is not consistent with custom and tradition, it provides the framework for the government-to-government relationship. Playing games with the laws, and twisting them to obtain personal gain is evidence corruption and the failure of the leaders to abide by tribal law.

So I don't want the Supreme Court to find in favor of Dollar General. I want tribes to do the right thing and govern wisely in the beneficial interest of their members. Don't you want the same thing? Or are you more comfortable destroying the unity of the people, inflicting harm and injury on innocent, and doing it all in the name of sovereignty as if that is some sacred object Indians are supposed to worship above all else.

Anonymous said...

True the BIA are just record keepers no real authority and totally corrupt and complicit to corrupt tribal leaders. They do not help the native people in any way shape or form. They only do whats easiest for them. They do not help the disenrollee's because they are supportive or bought off by the corrupt tribal leaders that disenroll or if they did step in and do something then that means they would have to step in for all tribes disenrolling to verify civil rights were followed and the disenrollment's were just and not to get rid of political opposition to stay in power, get rid of percap payments or shut out tribal members who ask too many questions the tribal leaders do not want to answer. That would be more work than the BIA would want to actual have to do. So my questions is how can people go about trying to shut down or get rid off an agency like the BIA? Start a petition with a certain amount of signatures? Is it even possible?

Sandbox said...

I agree with all of the comments. They all made good points. You must realize there were no members of any tribe being stripped of their heritage before IGRA. Family ties, blood lines, lineage, and traditions that went back centuries was respected by all. The federal government created this chaos. When it finally plays out, they will offer a solution. Which is always a power grab. More regulations, more oversight, and more control. Then they will pose as the saviors.

Reinstatement_Restitution said...

There were plenty of problems before the IGRA and gaming. People were herded onto reservations, treaties were made and broken, shared land was allotted and then subdivided into minuscule parcels, and Indians were taken advantage of with the participation of the BIA who was supposed to protect the land, assets, and resources of the Indians. There were reservations that had many different groups lumped together on them, some that weren't even related. That has led to tribes that want to remove large groups from the membership because they feel one group or the other doesn't belong.

Sure, money has a lot to do with it too, but the membership of tribes created first by the BIA. They made lots of mistakes. They played the favoritism game, or enrolled people who didn't really belong, or changed blood degrees based on stories. If you look at the 1933 Court of Claims Judgment Roll you will see where the BIA actually changed blood degrees based on the information from the 1928 CIJR applications. The information on those applications was often entered by someone other than the applicant and was not particularly trustworthy, yet it became the guide for setting blood degree for some people, and introduced lots of errors.

After making all these mistakes the BIA welcomed Santa Clara Pueblos v. Martinez and the Court's ruling that Tribes had the right to determine their own membership. That made it the Tribes' duty to fix the BIA's mistakes. The BIA then instituted a policy of non-intervention so they could sit by and watch the destruction as Tribes tried to fix the problems.

Does this mean the BIA should be dismantled? The NCAI has supported the BIA in the past when the federal government tried to terminate the BIA. So getting together a petition to shut down the BIA won't do much good. The U.S. Government considers the tribal leaders to be the tribes and only listens to them. Individual Indians have no voice. That is why the BIA denies disenrolled members eligibility for federal benefits and gets away without providing due process.

It is good to keep up the discussion and brainstorm with ideas on how to fix things. There are some terrible things going on in Indian Country and it is getting worse. It really is up to individual Indians acting together to bring about positive change. So talk it up and don't be discouraged if one idea or the other doesn't get support. In the end good people working together for positive change will overcome evil leaders who profit from harming there own people.

White Buffalo said...

March 28, 2016 at 1:02 AM

R & R makes some points that are true, tribal governments who use the tribal law in an unjust way are responsible for the loss of the right to regulate how, where and when the law is use, changed, or restricted. Due process is a right that all people have even Indians. The council of elders was once the body of law for many tribes where those who had a dispute would take their claim to the elders who would then listen to both sides and then make a decision. I am sure you know this. I am not going to say too much more because I don't want to repeat, but what do you do if you are treated unfairly by those who hold power over you? These tribes who manipulate their courts can only blame them-selves when they lose the right.

Anonymous said...

These are all good points, but what happens to the abused while waiting for help. Do they sit there and be homeless on their own Reservations or even worse get murdered by someone they have known for many years and get no justice.
These are real lives that are being taken away by these corrupt evil son of a bitches and those that remain on the Tribal Rolls are afraid to stand up against the EVIL LEADERS, all because of fear of losing that check every month.
That in its self is being just as guilty as the leaders are.
You are making it easier for them to take away the rights of Native Brothers and Sisters that DO NOT deserve this kind of treatment.
Do you really think that you are being good in the eyes of our Ancestors by supporting the slaying of your own People?
There is no way our Ancestors would be supportive of such evil corrupt leaders of today.
They would fight to the very end and they would win this battle without any doubt.
What makes you people think that you are doing the right thing by supporting these corrupt leaders?
What kind of a reward are you expecting to receive for your helping them to destroy the Reservations that our Ancestors help to build for the security and safety of our Families, to live in peace and to be happy.
A couple of dirty dollars will only secure your place in HELL.
Wake up Native People or lose everything.
Take a look at Pala and see what is happening down their in the devils paradise, even Murder seems to be okay with the leaders.
Take aim and reverse the shots, the wrong people are getting hurt and Murdered because of the EVIL LEADERS in Pala.

'aamokat said...

The Indian Civil Rights Act says, "“No Indian tribe in exercising powers of self-government shall ... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.”

The Temecula Band of Luiseno Mission Indians, sometimes referred to as the Pechanga Band of Mission Indians's constitution and bylaws states under Article V, "It shall be the duty of all elected officials of the Band to uphold and enforce the Constitution, Bylaws, and ordinances of the Temecula Band of Luiseno Mission Indians; and, also, uphold the individual rights of each member without malice or prejudice."

So how again does allowing the sisters of a key witness who were on the enrollment committee to rule on the cases of disenrollees from both the Manuela Miranda descendants and the Paulina Hunter descendants, who predictively voted to disenroll the families, not violate not only the Indian Civil Rights Act but also the Band's own constitution and bylaws?

The Pechanga tribal officials say that we disenrolless got a simple due process when the truth is we did not get no such thing!

Reinstatement_Restitution said...

The requirements of due process are not clearly defined, but there is a minimum expectation that those affected with potential loss or harm to their interests will be served prior notice, have access to legal representation, be able to confront their accusers, have a public hearing before an unbiased tribunal, have a record of the proceeding, have an opportunity to present a reason why the action should not occur, call on witnesses, and to know the evidence used against them.

In the Pechanga case cited above the tribunal was not unbiased so the right to due process was not fulfilled. The guarantee to due process in the ICRA has no provision for enforcement, and it appears that due process is not defined at all in the Pechanga Constitution. Vague provisions for individual rights are often contained in tribal constitutions. This is one area where the BIA format for constitutions is insufficient.

Many problems faced by tribal members would be prevented if there were clear and unambiguous statements of guaranteed individual rights with provision for enforcement contained in tribal governing documents. All too often tribal leaders intentionally make tribal laws and ordinances vague so that they can interpret the laws in tribal court or upon BIA requests. What good is it to get interpretations of tribal law from the leaders who are breaking those laws? This is part of the trap that tribal members get into when they fail to get involved in tribal government and to get informed on the issues of protection of civil rights.

If the BIA was complying with the Indian Self-Determination and Education Act they would provide consultation to tribal members on the need for effective statements of individual rights and provision for enforcement of violations. There is no such consultation provided either to members or leaders. Tribal leaders usually end up learning how to "massage" tribal law from attorneys that are employed by the tribe. So tribal members are paying for legal advice that twists tribal law so leaders can hurt their own people. This is the sickness that has gripped Indian Country and especially gaming tribes.

Tribal attorneys are retained and paid by tribes. They should serve the tribal members, but often only tribal leaders have access to tribal attorneys. If it is this way in your tribe you can be sure the reason is because the tribal leaders don't want the members to know what their laws says and how the laws operate. That is the kind of failed leadership that is destroying tribes, and undermines the confidence of external parties who might wish to do business with tribes, and of anyone looking in from the outside to see how tribal government operates.

If tribes are ever going to be truly self-determining and self-governing they are going to have to prove that their governments work to do something other than enrich the tribal leaders.

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Luiseno said...

"... those affected with potential loss or harm to their interests will be served prior notice""

Complied with, as we were informed about our disenrollment.

"...have access to legal representation"

Nope, we were told that we could NOT have legal representation, in fact the Tribal attorney was informed not to offer us advice.

"...be able to confront their accusers"

No again, we were Not allowed" to confront our accusers.

"...have a public hearing before an unbiased tribunal"

No again, we were ushered into a locked room, and covered by armed guards. And some members who were to sit in judgment of us were family members of those who were trying to disenroll us.

"... have a record of the proceeding"

Again we were not allowed to a record of the proceeding.

"...opportunity to present a reason why the action should not occur"

Yes, but we were told that they could reject any evidence we provided, and did not have to give a reason why it was rejected.

"...call on witnesses"

Nope, we were NOT allowed to call on any witnesses.

"...and to know the evidence used against them"

Not until AFTER our disenrollment were we provided with the evidence used against us. ALL of witch could easily be refuted if we were provided before hand the evidence used against us.

WeRone said...

Temecula Band of Luiseno Indians our Ancestors "Pechanga" need to be honored by ALL equally. The disrespect allowed by some members is sick and needs to be cleared. Our Ancestors deserve to be honored by ALL forever. We can make the corrections and live in peace, just like they did.

Reinstatement_Restitution said...

Prior notice means that you are informed before the adverse action is taken. Notifying you that you have been disenrolled is not prior notice.

Tribal leaders rely on the Supreme Court decision in Santa Clara Pueblos v. Martinez to preclude federal court review of tribal law, for protection of the right to determine membership, for non-interference in internal tribal affairs, for tribal immunity from suit in civil matters, and for the determination that the ICRA has no provision for enforcement except in matters of arrest or detention. If only it was possible to convey to the court how much damage has been done in the name of that decision.

If tribal members really want to protect themselves and preserve tribal sovereignty they need to make sure their governing documents clearly and unambiguously state their laws and have provision for enforcement. When tribal law is vague then tribal leaders must interpret it. The BIA and the Court will defer to the tribal leader's interpretations of tribal law, even when those interpretations are erroneous.

In fact the BIA and the Court will invent erroneous interpretations of tribal law in order to justify illicit disenrollments and attribute those interpretations to tribal leaders. This is what happened in Aguayo v. Jewell when the AS-IA said that meetings and elections are the same when it comes to adopting amendments to the governing document, and then said that this was the Band's interpretation. The Court fell all over itself interpreting tribal law to make it agree with the AS-IA statement when the Court is constrained from reviewing tribal law by Santa Clara Pueblos v. Martinez.

A good attorney should be able to lead the court to a proper decision. The problem is that most attorneys are not very experienced in Indian law and have no idea how deference operates. Nor do they realize how committed the BIA is to protecting disenrollments.

Dollar General is correct when noting that tribal courts are often subordinate to tribal leaders, and that tribal law is often known to only a few individuals. We have seen this intentional political structure where tribes create monkey courts that rubber stamp the decisions of tribal leaders, and where laws and ordinances are intentionally vague so that interpretation is necessary.

It is an absurd mess. The principles of protecting members from rogue leaders who thwart the will of tribal members, of acting for the benefit of Indians, of interpreting statutes in favor of Indians, and of the trust duty obligation are often thrown out the window in order to support disenrollment actions.

Often the courts disregard the damage caused or say they sympathize with the harmed and then refuse to intervene. Indians must fight this new form of tribal termination from within their tribes and do it before the tribal leaders usurp the power of the general membership. Otherwise they can look forward to irreparable damage and the end of their people.

Luiseno said...

Sorry, I might have been a bit vague on my reply. Should have read like......

"... those affected with potential loss or harm to their interests will be served prior notice""

Complied with (sort of), as we were informed about our up coming disenrollment. Although some of our family were informed by a memver of the enrollment committee (who would be judging us), that "we would be disenrolled no matter what evidence we provided.

Reinstatement_Restitution said...

Too bad you didn't have that statement recorded. It is evidence denial of equal protection and an unbiased tribunal. It would have made no difference in the disenrollments but might have helped in federal court.

Anonymous said...

This Sunday April 3rd,2016 will be a day of prayer from Elders across Indian Country to heal the people of the abused Reservations.
Just take the time and join in at 12 noon a set aside 15 minutes for this. Pray for all the corruption to be gone from all the Tribes that are not using the Customs and Traditions of their Tribe, and to stop the hurting of ALL Native American People that are being abused by their so called Leaders. Pray for justice for ALL.

WeRone said...

AMEN

Anonymous said...

After years of reading these blogs I have come to realize that animals, like dogs and others, have more rights than Indians living on the Reservations. You see people getting convicted of abusing there pet dogs and getting fined and sent to jail.
But when an Indian gets abused by the so called leaders of the Tribe, it seems that no one give a shit and no one gets in trouble but the ones that are being abused.
But kick your dog and get a year in jail and pay your fine of $10,000.