Sunday, March 5, 2017

Santa Clara Pueblo vs. Martinez: Can Divergent Opinions Be Correct? Is The Decision only a Shield ..or..a Weapon?

I'm fortunate to be involved in a lot of email conversations.  Because on of ours went out to a large group, I got a couple of responses and I'd like you to see them.  As ALWAYS...my comment section is open.  Thank you to BOTH.

Here's the first, from a responder from the American Indian Resource Center of the County of Los Angeles Public Library

Santa Clara Pueblo vs. Martinez (1978) - the Supreme Court essentially ruled that tribal membership does NOT come under Federal Jurisdiction - ONLY the official tribal government has ultimate authority.  Legal challenges to that decision over the last 39 years have failed .  

Theoretically it is possible to over-rule that decision but it would take a major very public concerted public effort, like with DAPL, for the feds to even consider examining it.  (OP:  ARE we UP to this challenge?)

IMO as with many American Indian issues, the feds think they've already done their part, they avoid such issues as much as possible, and just let the tribes deal with it.


This of course, triggers a response from one of our friends/family from PALA.  It's lengthy and will continue after the jump:



My first thought was why did he even write this email and what were his motives? How many times do we have to hear that Santa Clara Pueblo v. Martinez cannot be overturned?
Actually, I have to agree. I don’t think Santa Clara Pueblo v. Martinez will ever be overturned. I also don’t think that it has to be overturned. The right of a tribe to determine its own membership and a tribe’s right to self-governance is sacrosanct.

The problem is the courts will not allow the facts to be heard whenever there is a challenge to Santa Clara Pueblo v. Martinez. Each tribal entity that is challenged for its actions, (most actions detrimental to the membership of the tribal entity) claims sovereign immunity and the courts stop and action as if hitting a brick wall.
There is no need to try and overturn Santa Clara Pueblo v. Martinez. All people need to do is start focusing on the definition of a tribe. Remember that the Courts relied heavily on a tribe (Santa Clara Pueblo) and its long practice of recognizing its members through patrilineal lines. So we have two issues. One is the fact that Santa Clara Pueblo is a tribe and secondly, it had a long standing tradition that was practiced even before good ole Chris got lost and floundered on to the shores of North America.
The United States has established various criteria in conflict with Santa Clara Pueblo v. Marinez when it comes to defining what a tribe is.

The FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994 states:
(2) The term “Indian tribe” means any Indian or Alaska Native tribe, band, nation, pueblo, village or community that the Secretary of the Interior acknowledges to exist as an Indian tribe. ***

In this case it appears that the Secretary of the Interior has an almost supreme power to determine which group of Indians is or is not a tribe. Yet in promulgating the rules for determining who is a tribe in the Part 83 process the definition of a tribe becomes blurred. New terms and conditions have been put upon tribes to reconcile with the United States before they can become recognized. The use of terms such as: ‘Historic Tribe,’ ‘uninterrupted services,’ ‘previously acknowledged,’ and so on has become the impossible wall for gaining federal recognition.

The courts have also taken opportunity to try and define the difference between a tribe and a band:
By a “tribe” is meant a body of Indians of the same or similar race united in a community under one leadership or government and inhabiting a particular though sometimes ill-defined territory. (14 R.C.L. 147, citing United States Supreme Court cases.).

A “band’ on the other hand is a company of Indians not necessarily, though often, of the same race or tribe, but united under the same leadership in a common design; the word implies and inferior and less permanent organization than that of a tribe, though it must be of sufficient strength to be capable of initiating hostile proceedings. (14 R.C.L. 147, citing United States Supreme Court cases.).

What is really important with respects to these references is that most of California’s Indian Rancherias do not qualify as tribes. To the best of my knowledge, not one Rancheria was ever set aside for a specific group of Indians or tribes. In many, if not most, the Rancherias are comprised of various groups residing on the same Rancheria (Reservation). As examples: a Rancheria may be comprised of Concow, Wintun and Nomlaki while another Rancheria may be comprised of Pomo and Wintun while yet another is comprised of Foothill Miwok and Sierra Miwok and Southern Sierra Miwok and so on.

Remember that Santa Clara Pueblo v. Martinez was decided on the fact that Santa Clara Pueblo had a long standing tradition of determining its tribal membership based on patrilineal descent. As per the court record this practice existed for more than 500 years.

Most of the Rancherias in California do not even meet the minimum standard to be recognized as a tribe under the current Part 83 regulations. Aside from that, where is the long standing tradition of Wintun and Nomlaki living on the same reservation to determine membership? There is none.
What about Southern California? Most of the tribal entities in Southern California are identified as “Bands” and not tribes.  Most have been referred to as “Mission Indians” or of the Mission Indian Tribe. In the 1950’s the Bureau of Indian Affairs finally took the position that there was no such thing as a Mission Indian or a Mission Indian Tribe. Also consider that the Indians of Central California were considered to be “Digger Indians” and that was their assigned tribal affiliation by the United States.

While most of the tribes in Southern California can pass the Part 83 process there still remains the question of whether or not they truly meet the criteria as set forth in Santa Clara Pueblo v. Martinez. Yes they are treaty tribes (Unratified), Executive Order tribes, Congressional Order tribes and Court Order tribes. Yes they do enjoy sovereignty but I believe that sovereignty can be narrowed by challenging each entities historical practices.

Historically tribal membership was determined by the United States, Bureau of Indian Affairs and most if not all tribes went along with these determinations. The one element of tribal enrollment that stands out and is not a traditional practice for any tribal group is that of blood quantum. Determining blood quantum was a tool utilized by the United States to eventually rid the United States of it Indian problem. The Santa Clara Pueblo v. Martinez decision should have put an end to this practice but it has not. Following a patrilineal line of descent is not the same as a blood quantum.

This is why Santa Clara Pueblo v. Martinez has a soft underbelly and can in fact be attacked. No one will succeed in overturning Santa Clara Pueblo v. Martinez but if you embrace the decision and force the courts to clarify what is meant by a tribe and a long standing historical practice of tradition then I believe current practices of disenrolling members within a tribal group would come to an end.

Any attempt to take on Santa Clara Pueblo v. Martinez has to be done by suing the United States itself. Such a suit would have to be crafted to prevent a tribe(s) from filing as an indispensable party. The United States has used this tactic of allowing tribes to file as indispensable parties so as to invoke the right of sovereign immunity and therefore rendering the courts helpless in hearing matters of this nature.

What do I mean by embracing Santa Clara Pueblo v. Martinez? It is very simple. Yes, we agree that a tribe that has a long standing tradition of determining membership (500 years or more of evidence of such practice) is protected by the Court. Those tribes who operate under membership rolls established by the BIA and determined by blood quantum, are not traditional practices of the tribes of California and therefore not sanctioned by Santa Clara Pueblo v. Martinez. Also, comingled groups such as Luiseno/Digueno and Cahuilla could never demonstrate that they have ever had a long standing historical practice of determining membership. Even breaking it down finer would be to say that the Ipai and Tipai, although recognized and treated as Digueno, cannot demonstrate a long standing historical practice of determining membership.

I think most of these groups would look silly and appalling if we could get them in to court. Unfortunately we cannot get them in to court. Just imagine though, witnessing their overpriced attorneys trying to convince a judge that although these groups do not follow the practice of moiety their long standing historical practice of allowing the BIA to determine their respective tribes membership based on blood quantum, whether of the tribe or not, qualifies them for protection under Santa Clara Pueblo v. Martinez. I don’t think so.
So which practice do you think most of these tribal entities would determine is their long held and precious historical means of determining membership? Would it be Full Bloods only? Would it be only of the same tribe? Gee, let’s all go out and marry our cousins.

Then there is the overlooked action of the United States in determining which Indians can occupy a certain Reservation. Talk about a nightmare. If a Reservation was established exclusively for one “Band” or tribal entity, then what happens to the rest of the Indians that the BIA dumped on to these Reservations and outside the authority Congress? This is where the wheels of Santa Clara Pueblo v. Martinez come off. If you think this is all just made up and a dream, then do realize that this dream is based in reality. The Jesse Short case and the Puzz case are real and they shattered every definition of Santa Clara Pueblo v. Martinez. The rest of California tribal entities can be subjugated to the same scrutiny.

So yes, if you are really serious about seeing justice done, then embrace Santa Clara Pueblo v. Martinez. Rancherias are not comprised of tribes but are comprised of wandering homeless Indians with no place to go. They were placed on these Rancherias irrespective of their tribal affiliation. In Southern California, most bands are not representative of their associate or respective tribes.

So let’s go to court because there is one last surprise. The Treaty of Guadalupe Hidalgo has provisions which prevent or prohibit Indians of Mexico from  becoming members of tribes within the United States. How fun it would be to go to court and lay out some of these family lineages and look at the judge and proclaim, “Nope! Ain’t no Santa Clara Pueblo v. Martinez here.”


On an end note, I found it appalling and disgusting to have to sit here and smell the stench of spent jet fuel as fleets of private jets raced to Standing Rock for their photo opportunity to show the rest of the world how much Indian they are (too). Just think of the dollars wasted that could have gone to really help the people of Standing Rock. On the other hand, a strong thank you to those tribes that did send aid and provide resources to the people of Standing Rock.

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