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Thursday, November 7, 2013

The Disenrollment Disaster: David WIlkins on Disenrollment Affecting Sovereignty

Professor David E. Wilkins holds the McKnight Presidential Professorship in American Indian Studies at the University of Minnesota.  He writes about the Nooksack Tribe's disenrollment here, but many tribes who have done harm to their people will be responsible for the erosion of sovereignty.  Because tribes have the RIGHT to do something, doesn't make it RIGHT.

 I have followed with keen interest the divisive issue of disenrollment of tribal members across Indian country. It is a complicated and depressing subject but, regardless of individual circumstances, the protection of sovereignty is rightly a priority for all those involved. I was therefore shocked and disheartened to read the devastating language used by the Chief Judge of the Nooksack Tribal Court in a case involving the potential formal disenrollment of 306 Nooksack tribal citizens.
In an attempt to explain the court’s decision, the Chief Judge used a rationale that may return to haunt not only the Nooksack but all Native nations. Even as she affirmed the power of a sovereign nation to set its own membership criteria, the Chief Judge managed to devalue the very essence of Native nationhood by negatively comparing Native loss of citizenship to that of non-natives loss of United States citizenship.
To her credit, it appears that the Chief Judge was attempting to console the disenrollees and explain a decision that gravely disappointed them. Unfortunately, she also utilized words that profoundly diminished indigenous sovereignty:
“While the Court recognizes the important entitlements at stake for the proposed disenrollees, this is a fundamentally different proceeding than a loss of United States’ citizenship…. In the case of tribal disenrollees, the disenrollee loses critical and important rights, butthey are not equal to the loss of U.S. citizenship. A person who is disenrolled from her tribe loses access to the privileges of tribal membership, but she is not stateless. While she loses the right, for example, to apply for and obtain tribal housing through the Tribe, her ability to obtain housing in general is unaffected. Though she loses the right to vote in tribal elections, she does not lose the right to vote in federal, state, and local elections.While the impact on the disenrollee is serious and detrimental, it is not akin to becoming stateless.” (Emphasis mine.)
Whatever one’s views on the way each Native nation chooses to exercise their sovereignty with regard to defining membership, the judge’s view of Native nationhood is chilling. By ruling that the termination of a Native person’s citizenship is “not equal to the loss of U.S. citizenship” and the loss of tribal membership is “not akin to becoming stateless,” she places Native citizenship in a position squarely inferior to U.S. citizenship. The implications are profound. It is not realistic to expect to maintain true government to government relations with states and the federal government if we begin by diminishing our own status as citizens of sovereign nations.
Why a Native judge would consider tribal nationhood inferior to US statehood is a frightening perception to fathom. It is difficult for me to believe she intended to weaken the idea of sovereignty even as her ruling assuredly affirmed it. Rather, the judge’s attitude reminds me of the statement that Stephen Biko, the South African anti-apartheid leader once made: “The greatest weapon of the oppressor is the mind of the oppressed.” We expect our leaders to be the most diligent guardians of sovereignty and yet many of them, to some extent, internalize the paternalistic attitudes of the larger U.S. political culture. It is this unconscious paradigm shift within our own communities that promises to do the most profound harm to indigenous peoples
A more realistic assessment of the value of tribal citizenship also derives from a judge who sat on the federal Court of Appeals for the second circuit. In the important case,Poodry v.Tonawanda Band of Seneca Indians(1996), Judge José A. Cabranes (a Puerto Rican) provided a profound defense of indigenous citizenship and, in contrast to the tribal judge (a Pueblo), he absolutely equated the deprivation of a Native’s citizenship to that of a US citizens denaturalization.
In discussing both, Judge Cabranes, relying on prior Supreme Court precedent, reminded us that “a deprivation of citizenship is an extraordinarily severe penalty with consequences that may be more grave than consequences that flow from conviction for crimes.” He also said that the loss of citizenship-- be it indigenous or US-- entailed the “total destruction of the individuals’ status in organized society … It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development.”
Finally, Cabranes directly addressed how damaging tribal loss of Native citizenship was. Such a deprivation “does more than merely restrict one’s freedom to go or to remain where others have the right to be: it often works a destruction of one’s social, cultural, and political existence. To measure whether summary banishment from a tribe constitutes a severe deprivation solely by reference to the liberties of other Americans is tantamount to suggesting that the petitioners [the five banished Senecas] cannot live among members of their nation simply because other Americans cannot do so; and that the coerced loss of an individual’s social, cultural, and political affiliations is unimportant because other Americans do not share them. Such an approach renders the concept of liberty hollow indeed.”
Judge Cabranes’ analysis of the deep and lasting deprivation that banished Native individuals experience is arguably even more fitting for Natives facing legal disenrollment. And nowhere in his account does he suggest, or even hint, that the loss of Native citizenship is somehow less onerous than the loss of US citizenship.
Whether or not the leaders of the Nooksack Nation ultimately proceed with plans to disenroll these members, I hope the Nooksack Tribal Court of Appeals will overturn this ruling and jettison the appalling language by the judge that denigrates the very essence of indigenous nationhood-- which hinges on the full right and recognition of the sovereignty of each and every bona fide Native citizen.
If not, I fear that the subordinate language she chose to describe Native sovereignty may be appropriated by Native enemies who are always looking for legal, linguistic and other weapons to further erode our remaining powers. It is a shame that we, ourselves, sometimes provide them with those tools.



Anonymous said...

Nothing will change until Santa Clara is over turned or reviewed, tribal constitutions/governments are sanctioned by the united states and should be the form by which an individual Indian could elevate their grievance passed a rogue tribal government unwilling to follow their own laws.

Anonymous said...

It is true tribes do have the right to determine membership qualifications but not to determine blood degree. That is in the records of the BIA and other government records. In order for Pala to disenroll the chairman changed the blood degree of someone who died almost a hundred years ago in order to put the disenrollee's below the qualification line. That tribe is not arguing the tribes right to make their own membership requirements just who gave one man Chairman Robert Smith the right to change history and the blood degree of someone long pasted and claiming sovereignty as a shield to not show anyone his tribe or the BIA what he used to come to this conclusion. While all the other tribes with her descendants have her original blood degree because they use public BIA, DOI,census and geneolgist records to determine her blood degree and one man hiding behind sovereignty can change history and say it's my sovereign right not to show my evidence not even to the BIA or his own tribe. Something fishy about that. The video of him Chairman Robert Smith saying that exact statement is on YouTube in an interview he did on disenrollment.

Anonymous said...

People like chairman smith will be the downfall of tribal sovereignty when the use it in such ways to hurt their tribe and use it as a shield to not have to answer to anyone for their crimes. Even when the BIA backs the disenrollee's to stay in the tribe "Due to no evidence to support disenrolment" is a quote from the BIA letter to Pala chairman Smith on his actions. Still he claims sovereignty as his right to do it anyway with nobody to tell him otherwise.

Anonymous said...

What is ironic about Robert Smith now claiming that Margarita Brttain was half indian instead of full blooded is that he actually signed a letter confirming to another tribe that her children were half indian and that letter is evidence that what he is now stating is not true.

Anonymous said...

Some tribal leaders will do anything "LiE" and disenroll to stay in power and keep control of the $$$$ coming into the tribe.

Anonymous said...

"Why a Native judge would consider tribal nationhood inferior to US statehood is a frightening perception to fathom. It is difficult for me to believe she intended to weaken the idea of sovereignty even as her ruling assuredly affirmed it. Rather, the judge’s attitude reminds me of the statement that Stephen Biko, the South African anti-apartheid leader once made: “The greatest weapon of the oppressor is the mind of the oppressed.” We expect our leaders to be the most diligent guardians of sovereignty and yet many of them, to some extent, internalize the paternalistic attitudes of the larger U.S. political culture. It is this unconscious paradigm shift within our own communities that promises to do the most profound harm to indigenous peoples"

Native assimilation, not from the outside, but from the inside. It's an awakening that needs to be stopped. Sad day.

Anonymous said...

Problem is certain tribal leaders are using "the tribes" sovereignty as an I can do what I want and not answer to anyone card. The BIA and government/courts need to realize the tribal leaders "ARE NOT THE TRIBE" and cannot hide behind sovereignty which is meant to protect the tribe "the majority" not the couple people on the council. Especially when they change the tribes constitution or laws to hurt the same people they are duly sworn to protect and keep them under direst as a reminder not to challenge them.

Anonymous said...

Disenrollent is a very effective tool for tribal leaders trying to stay in power. It drops opponents votes, save's money the corrupt tribal leaders are taking and makes an example to other members of what can happen to them if they go against said tribal leaders.

Anonymous said...

The tribal judges that rule for disenrollment are probably either related to someone on the council or receiving funds from them. They try to sound innocent in the whole thing, but I am sure somehow they are connected. If this is going to continue tribes should be made to prove every members blood, even the leaders to belong. I am sure the US Government is snickering in the background at watching leaders destroy the whole Indian Country little by little. They do not want Reservations in the first place and they could save on the billions they give in grant money to the tribes, it would be more than the money they receive right now. I am so sorry for the disenrolled who belong, it is very very heartbreaking.

Anonymous said...

Sovereignty is not immunity to civil rights.

Anonymous said...

It might not be immunity in your eyes, but it sure is trumping anything out there in defense of your opinion, the supreme court and Indian civil rights act have stated otherwise, no protection for the little guy.

Anonymous said...

Sovereignty is not immunity to civil rights ?

What does that even mean ?

You have Indian Civil rights and Civil Rights.

You can't sue a tribe over a " Civil Rights issue " Private right of action ".

So , your statement is False.

Don't post false Info for people here.

Anonymous said...

When a tribal leader disenroll's without evidence,due process or a chance to appeal that is a violation of civil rights. Then the tribal leaders claim sovereignty from the BIA or courts to look into the case. If an outside unbiased entity was to look at each case and the evidence used to disenroll then 75% of them would be overturned and deemed illegal. Tribal leaders know this so claim sovereignty to keep BIA and courts from ever even looking at the cases.

Anonymous said...

No that's not correct ( Those are Indian Civil Rights ) and a Tribal process.

And if they had a real tribal court ( It could be reviewed ).

If you look under the Indian Civil rights act ( It talks about due process) .

White Buffalo said...

The loophole regarding civil rights issues is simple. In most cases the substantive issues never get heard. IE civil rights issues. Our first case would have been heard, yet this did not happen because the Supreme Court deferred the case, meaning they did not accept the case. Their reasoning was that it was a legislative issue better addressed by congress. Pechanga has stated and continues to state that the courts have decided. This is a lie. The fact is the merits of our case have never been heard.

Anonymous said...

Native Americans hold dual citizenship.

If you had a ( Civil Rights ) complaint you would be able to file it in Federal Court ?

But as you could see , people are fighting to amend the (Indian civil rights act ) To allow a single Indian -non member to sue a tribe ( Thus its your Indian Civil Rights).

Anonymous said...

With the passage of the Indian Civil Rights Act (ICRA) in 1968, also called the Indian Bill of Rights, Native Americans were guaranteed many civil rights they had been fighting for. :[6] The ICRA supports the following:[7]
Right to free speech, press, and assembly
Protection from unreasonable search and seizure
Right of criminal defendant to a speedy trial, to be advised of the charges, and to confront any adverse witnesses
Right to hire an attorney in a criminal case
Protection against self incrimination
Protection against cruel and unusual punishment, excessive bail, incarceration of more than one year and/or a fine in excess of $5,000 for any one offense
Protection from double jeopardy or ex post facto laws
Right to a jury trial for offenses punishable by imprisonment
Equal protection under the law and ( due process) !!!!!!!

Anonymous said...

brilliant commentary

Anonymous said...

Thank you , However I am not trying to be a "smart ass" some people have tried to file a Title 42 1983 Law suit " for deprivation of rights " !

OR 42 1983, 1985 Conspiracy against your "federally protected Rights " but I have not seen a win by a " Dis-enrolled person yet!

I only post this to share Info with people ( From my own ) experience.

White Buffalo said...

As I have said we tried and the merits of our case were never heard. Pechanga won on appeal. Their argument was simple tribal sovereignty trumps civil liberties.

Anonymous said...

Chairman Robert Smith pulled Pala from the tribal court system 3 months before he starting disenrolling so they would have nobody to appeal to. He knew exactly what he was doing. He also changed Pala constitution so the BIA could not interfere with enrollment issues they can only make recommendations after reviewing the evidence and the BIA recommended Robert to keep them on the rolls "due to NO EVIDENCE to support their disenrollment" he had the whole thing planned. Gotta give him credit there he played it good.

Anonymous said...

Sweet Jesus Some Protester got "Fucking Jack up"

TITLE 42, U.S.C., SECTION 3631

Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with--

(c) any citizen because he is or has been, or in order to discourage such citizen or any other citizen from lawfully aiding or encouraging other persons to participate, without discrimination on account of race, color, religion, sex, handicap (as such term is defined in section 3602 of this title), familial status (as such term is defined in section 3602 of this title), or national origin, in any of the activities, services, organizations or facilities described in subsection (a) of this section,


or participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate--

Anonymous said...

Sorry that was " A Pechanga protester got " Fucking Jacked up" by an Agent.

That's a secret shhhh!

Anonymous said...

What ? Statute of limitations ?

When a section 1983 claim accrues–when all of the elements of the claim are present–is a matter of federal law. The governing accrual rule for section 1983 is the medical malpractice discovery accrual rule, meaning that the statute of limitations for a section 1983 claim begins to run when the plaintiff knew or had reason to know of the injury. See United States v. Kubrick, 444 U.S. 111 (1979).

In the employment setting, it is the date of the challenged conduct, such as the alleged racial or sex discrimination, that begins the running of the applicable limitations period, not necessarily when the employee is no longer employed. Delaware State College v. Ricks, 449 U.S. 250 (1980).

McFly are you still with me ?

Anonymous said...

Marty McFly was 1985!

Were is this thought going?

esther lopez said...

If you don't know what he's talking about " Get a bag of popcorn and go sit in the stands".

Have you seen the "coliseum in rome"?

Win the crowd " And you'll win your freedom"!