Finally, a tribal attorney seems to have had enough of the stench of tribal disenrollment. Elem Indian Colony, the subject of recent protest for it's unethical practices, will have to find another attorney.
With disenrollment-related events now happening at Elem Indian Colony, a Lake County tribe that has been my client for many years, and the public accusations that I am a supporter or collaborator in those disenrollments, I have determined I need to do two things: 1) Clarify what my role has been at Elem; and 2) step away from all further work for Elem unless/until the Tribe heals itself.
Good start, Mr. Cohen
I was asked over a year ago to review a draft disenrollment ordinance that was, ironically, proposed by one of the people now on the disenrollment list. I refused, and strongly advised against disenrollment as a punishment, no matter what the alleged offenses were. The draft ordinance lacked due process provisions and was inconsistent with the Indian Civil Rights Act, the only federal law that protects tribal members from their tribal governments.
Most ordinances are written so that their IS little due process.
When a tribe adopts the Indian Civil Rights Act into its own constitution (as, for example Dry Creek has), I believe that actions of its elected officials that violate the ICRA are outside the scope of their tribal authority and they are therefore not protected by the tribe’s sovereign immunity. They can therefore be sued in state court under PL-280. The suit would ask the court to rule that they are speaking only as individuals, not for the tribe, to enjoin them from claiming to be speaking for the tribe, and to find them liable for defamation for claiming members have been disenrolled. This could be the way to get around , which said the ICRA is a nice principle but otherwise worthless.
Courts have been reluctant to do the right thing, legally speaking as they choose to accept Santa Clara Pueblo interpretation that is misguided.
When I was recently informed of the intended disenrollments and asked to amend the ordinance to include disenrollment, I strongly expressed my opinion that it was wrong, but I did add the disenrollment paragraph to the existing ordinance for one reason, and one reason only: There was nothing I could do to stop the disenrollments, but by carefully adding that sanction to the ICRA-protected disenfranchisement ordinance, I could at least ensure that people accused of crimes and threatened with disenrollment were entitled to the protections of ICRA and would have access to the state and/or federal court system to remedy any violations. THAT HAS BEEN MY ONLY ROLE in this current disenrollment disaster, and I have from day one made it clear I will have no other role in it.
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