Pechanga DISENROLLMENT Under The Guise of Sovereign Immunity
is NOT Immunity from Condemnation or Sanctions.
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.