Sovereign Immunity Conceals Egregious Civil and Human Rights Abuses
Stripping Your Own People of Their Rights Is an Atrocity That Must Be Stopped.
TAKE A STAND and Make Your Voice Heard.
Friday, July 4, 2014
BIA Gives Tacit Approval for Tribal Cleansing in CA
California's Tribal Cleansing: Tacit Approval from BIA and Federal Government (we can't do anything, we are impotent, but keep giving us budget dollars)
In this reports from 2010, Brian Frank has the story of Tribal Cleansing and the Struggle to be hear by those whose civil rights have been violated.
As California Tribes Continue To Purge Members, Dissidents Struggle To Get An Audience
by Brian Frank |
TEMECULA, Calif. — John Gomez Jr. reads to his sons in a near-dead language. He wants them to grow up listening to the language of their ancestors and hearing the creation stories, which are tied forever to natural landmarks here about 90 miles southeast of Los Angeles.
Gomez identifies strongly as a member of the Pechanga Band of Luiseno Indians. He even named his sons after prominent figures in the history and lore of the Temecula Indians, who now call themselves Pechanga. To his youngest he gave the middle name Ano de Apis, after the merger of two clans through the marriage of his own ancestors Casilda Ano and Pablo Apis (pronounced “Oppish”), who was a prominent chief. The older boy he named Chexeemal, or Kingbird, who plays an important role in the creation stories.
The boys are supposed to learn about their cultural heritage at the Pechanga tribal school, which was set up for that very purpose, but instead they have been barred from attending. In 2004, the Pechanga Band expelled Gomez and much of his extended family—some 130 adults total, along with their children—stripping them of their tribal citizenship and all the rights that go with it.
What happened to Gomez has become so commonplace in California and across the nation that the term for it is gradually gaining recognition outside of Indian Country: it's called disenrollment. More than 20 tribes—a fifth of those federally recognized in California—have voted to disenroll members in the past two decades, more than in any other state. There is no official tally, but estimates collected from several activists, including Gomez, indicate that more than 2300 American Indians have lost their tribal citizenship here since disenrollments started occurring more frequently in the late '90s.
Meanwhile, some of these same tribes reap tremendous benefits from one of California’s newest and most powerful industries, Indian gaming, which for the past two years has outperformed the almighty Vegas Strip with its more than $7 billion in estimated annual revenues. Many tribes share this newfound wealth with their members on a per capita basis—that is, by cutting individual checks, which in the case of the Pechanga reportedly amounts to six figures a year per person. Under such a system, smaller membership translates into more money for everyone, creating a perverse incentive to pit one family against another.
What’s at stake here is not only the livelihood and identities of thousands of American Indians, but also who controls a gaming industry that has virtually overnight become both the richest of its kind in the nation and one of the most influential political lobbies in California.
“We need to do something to bring light to this issue, to help other people, to help each other, and to stop this thing,” says Gomez, who as president of the activist group American Indian Rights and Resources Organization has placed himself front and center in what some are calling a new civil rights movement.
A Powerful New Player
Tribal governments together make up the fifth largest special interest group in the state, funneling more cash into California political campaigns than the powerful teachers unions or pharmaceutical manufacturers, according to MAPLight.org California, which tracks contributions. And the heads of two California tribes, including Pechanga chairman Mark Macarro, made Capitol Weekly’s list of the 100 most powerful political players in the state.
Macarro became arguably the most recognizable American Indian in the state when during the 2008 election season he served as the face of an aggressive if soft-spoken ad campaign to expand the number of slot machines legally allowed at four of California’s richest Indian reservations. That referendum, which voters approved, resulted in an increase of thousands of slot machines at casinos owned by the Sycuan, Morongo, Agua Caliente and Pechanga tribes, further boosting their already handsome earning potential.
“We’re probably going to exceed Las Vegas in the next year as the No. 1 gambling destination,” says Cheryl Schmit, director of Stand Up For California, a watchdog organization for gambling in California.
Vegas-style gaming, including slot machines, is illegal in California. But Indian tribes have a complicated relationship with the state and federal governments. Each tribe has its own agreement with the United States that determines just how far its sovereignty extends, but in general a tribal government has the final say on many of the laws that affect routine affairs on its land.
Still, though many tribes began to operate bingo halls and experiment with gaming as early as 1980, gambling was still technically illegal. That changed in 2000, when voters approved Proposition 1A, an amendment to the California constitution making Vegas-style slot machines legal on Indian reservations, so long as the tribes signed special revenue-sharing compacts with the state. The subsequent boom has seen a rise in big, splashy resort-style casinos and made a handful of California’s more than 100 tribes very rich, even though many remain poor.
As a collective bargaining group, and with huge pools of money suddenly at their disposal, California tribes now represent one of the most powerful business interests in the state, so the question of who controls them has become as relevant to voters as it is to the people who live under tribal law.
Yet the stakes for tribal members are perhaps even higher. Elect the wrong leaders and they risk losing not only their monthly “per cap” checks, but also their very identity as tribal people, and all the benefits that go with that status.
A Case Study at Pechanga
When Gomez and his family lost their membership in the Pechanga band, they also forfeited their access to the tribal health clinic, a substantial income, access to the tribal school for their children, certain federal benefits reserved for American Indians, and even their right to call themselves Pechanga in the eyes of the federal government.
“We’ve heard that some people have committed suicide or attempted suicide,” says Gomez, referring to the emotional toll that can be exacted upon the disenrolled. “Some people just go into their own little world, you know. They just don’t want to be bothered anymore. People that had always been part of the community, not just with Pechanga or their own tribal community but with the larger Indian community, no longer participate in stuff that they used to do all the time.”
The Pechanga have become a frequent focus of media attention as a rash of disenrollments have cropped up across the state, in part because one of the major voices speaking out against tribes who take such actions is a former member—Gomez—but also because they have had two major expulsions of their own and an on-going ban on all new members.
Gomez’s family was the first to be disenrolled in 2004, but trouble began stirring long before that, long before there was even a casino.
In the early ’80s, while the tribe was just beginning to formalize a written constitution and enrollment criteria, a small band of Pechanga members led by Russell “Butch” Murphy and commonly referred to as the Splinter Group sought to break away and become federally recognized as the official Pechanga Band, according to copies of court documents provided by Gomez.
The Splinter Group’s primary complaint had been that the new enrollment criteria were unfair. In fact, it was apparent to the group’s members that they would not be able to enroll at all, so their response was not to participate in the application process.
As a compromise to help keep the peace, at a general meeting open to all members, a respected tribal Elder named Lawrence Madariaga seconded a motion to extend the enrollment process for another year, allowing more time to resolve the issue. The motion carried with a 35-2 vote, but the Splinter Group announced that it was breaking away to form its own tribe, anyway.
To do so, it had to convince the Bureau of Indian Affairs—which keeps the official record of federally recognized tribes—that they had the stronger case. They wrote to the BIA laying out their argument, and the bureau at first agreed to recognize the election of their own governing council.
But the main group of Pechanga Indians appealed the BIA’s decision, depicting the Splinter Group instead as a ragtag bunch of outsiders who had been adopted into the tribe only to return the favor by trying to seize power for themselves. They also argued that for the BIA to rule in the Splinter Group’s favor would be to infringe on the tribe’s sovereign right to determine its membership.
The BIA upheld the integrity of the whole tribe, allowing that the members of both groups were legitimate, and so things remained for a number of years. Ultimately, Murphy and other members of the Splinter Group managed did get enrolled.
The Money Factor
But the issue would come up again. In 1995, the tribe opened a small but lucrative gaming center. As the money trickled in, tribal members began to receive checks made out directly in their names.
“It was really, really slow, because it was a small facility,” Gomez says. “But eventually, you were talking thousands of dollars a month and then tens of thousands of dollars a month. And there was a lot of people that had never seen that amount of money before, didn’t really know how to handle it, and it created issues for them.”
Most tribal members wrestled with issues of how to spend the money or whether and how much to save, Gomez says. But for others, it was more about greed.
“It also created a group of people that said, ‘You know what? We need to get more. There’s other tribes in the area that get a lot more than we do,’” Gomez says.
It was money that exacerbated the dispute over who belonged in the tribe.
The Pechanga, who are governed by a tribal council with seven elected members, have a separate enrollment committee that oversees membership applications and maintains a list of lawfully enrolled individuals based on eligibility requirements laid out in the tribe’s constitution. With the prospect of so much wealth suddenly at play, the tribe claimed, the number of new applicants claiming to be Pechanga had spiked, creating a backlog.
A moratorium on all new members was proposed so that the enrollment committee could catch up with the applications already on file. But such a move required the approval of the general council—that is, the entire voting public. Suddenly each member of the tribe had to decide whether to potentially cut out relatives and friends who were simply slow to complete the required paperwork. It would be a defining moment for the tribe, one that for some boiled down, at least in part, to a simple equation.
“From a purely selfish standpoint, and I freely admit this, I knew that if a lot more people got in, that would reduce the amount of benefit that was coming to me and to my family,” says David Cuevas, who voted in favor of the ordinance.
Though it is impossible to say how many other tribe members were motivated by greed, Cuevas for his part seems to think he was not the only one. And on paper at least, the rise of California’s casinos tracks conspicuously close with the increase in disenrollments (see map).
Either way, the moratorium passed, and more than a decade later, it has yet to be lifted.
Mark Lucero is one of the applicants who were kept out by the moratorium. He owns land on the reservation, though he did not grow up there. Like many California Indians, his family had years ago been given an allotment as part of a settlement with the U.S. government, which at the time recognized his ancestors as Temecula, or Pechanga, Indians. But with little economic opportunity on the reservation, his family left to pursue their fortunes elsewhere, before Lucero was born.
Lucero’s story is representative of the countless California Indians whose ancestors were displaced first by Spanish settlers and later by American ranchers. Often the Indians were forcibly removed to make way for the ranchers. At other times, they left of their own volition, because, like Lucero’s family, they had no work to sustain them.
While several thousand American Indians today can claim to be part of a federally recognized tribe in California, many tens of thousands more have wound up assimilating into the main population to a greater or lesser degree, having been scattered in their own great Diaspora.
As generations passed and with genealogical records sporadic at best, the ties have been cut permanently for many families, the bloodlines obscured forever.
But some, like Lucero, have been, as he describes it, “called back.”
Lucero grew up in East Los Angeles, and with his dark skin and an angry disposition, he quickly fell in with one of the neighborhood’s Latino gangs.
“I got involved in the gangs at an early age, at 11 years old,” he says with a distinctly Mexican-American lilt, speaking at his apartment in Riverside, Calif.
Before he was 18, Lucero says, he had seen friends die, he had been stabbed, and he had killed. He says it was largely his mother who saved him.
He remembered as a child watching her stand on a chair, light incense and turn to the four corners and to the creator in a traditional prayer. She had maintained her tribal identity, and Lucero says he visited the reservation many summers growing up.
Lucero says he knew that he was Indian but for years identified more strongly with his street gang. It wasn’t until he was much older that he began to appreciate that he had been left another, more positive legacy.
Ultimately, Lucero gave up the gangs, gave up the violence and the drugs, and became a devoted student of Indian traditions. He learned to drum, to sing, to pray. He attended sweat lodges and developed in earnest an interest in his spiritual life. The only thing missing for him was full legal citizenship in the Pechanga Band.
When he applied, however, he was denied not because the tribe did not recognize him as a Pechanga, but because of the moratorium.
Lucero tried again, despite owning a piece of the reservation itself, and despite having relatives, full members themselves, who live there. Lucero, having always considered himself a fighter, took up protest.
And that was ultimately how he would come to meet John Gomez Jr.
Coming Unraveled, or Holding It Together?
Shortly before 2004, Gomez says, a group calling itself the Concerned Pechanga People began calling for the disenrollment of three entire family lines. In anonymous letters sent to tribe members, they claimed it was necessary to correct past enrollment mistakes in order to protect the integrity of the tribe.
At the same time, the passage of Proposition 1A in 2000 had helped clear the way for further expansion of Pechanga’s gaming center. In 2002, the tribe had held the grand opening of its AAA-rated Four Diamond Pechanga Resort and Casino, which was now the largest in the state with thousands of slot machines, more than 100 table games, a nearly 200,000-square-foot casino floor, and more than 500 guest rooms.
With no new applications being accepted, the amount of money coming from casino revenues to each tribe member had gradually increased to as much as $15,000 or $20,000 a month. Disenrolling hundreds of members would increase it even more.
The families targeted by the CPP included all descendants of a woman named Manuela Miranda, a relative of former chief Pablo Apis—that was Gomez’s family. It also included the Garbani family and the descendants of a woman named Paulina Hunter. The Hunter family included Lawrence Madariaga, the elder who had voted to give the Splinter Group more time to enroll, and who had even received an award recognizing his long service to the tribe. It also included Cuevas, who had voted in favor of the moratorium because it meant more money for his family. And it included Lucero.
To head off possible disenrollment action, members of Gomez’s family approached him about running for a position on the enrollment committee, figuring that by seating one of their own, they would have a chance to vote it down, he says.
Gomez had already gained a reputation for service by lobbying in Sacramento to get the state to recognize the tribe’s right to operate a casino. He had little trouble winning a spot on the committee. But he quickly discovered how shadowy tribal politics could be. He was not allowed, for instance, to see the alleged backlog of applications that had led to the moratorium. Those were kept under lock and key, and only a handful of people were allowed to see them, he says.
In the end, however, being on the enrollment committee only gave Gomez a front row seat to his own expulsion. Meeting in secret and without all of its members, the committee officially disenrolled more than 200 members of the Miranda line, including Gomez, who was not even allowed to cast a vote.
Gomez did not take it sitting down. Over the next year, he managed to turn his own plight into a lesson for others. He researched the issue of disenrollment and, with the help of the Internet, managed to connect with others in California who had had similar experiences.
“When you remove people, and when that removal is done in violation of these laws that are supposed to protect you as not only a citizen of the tribe but a citizen of the United States, then you start to think about things. How is it I don’t have any rights? How is it that somebody could do this to me and my family and the generations to come without having to pay the price for violating the law?” Gomez says.
In 2005, a group of disenrolled Indians from tribes across California and even out of state met in Temecula to share their experiences and discuss what could be done. They agreed to form an organization to raise public awareness of the issue and to help others facing disenrollment. They called it the American Indian Rights and Resources Organization, or AIRRO.
Among those elected to the board of the new organization were Lucero and Gomez, who now shared a common cause, both having been denied membership.
But it would be an uphill battle. The disenrolled have repeatedly sought help from the justice system, at first citing Public Law 280, which states that in certain situations California courts may serve as arbiters of tribal law. But the courts consistently declined to intervene, ruling that tribal membership matters do not fall within their jurisdiction.
“You have to kind of compare it to like, if you got denied citizenship in France, can you appeal here? Of course not. So you get denied citizenship in a tribe, can you appeal here? Of course not. It’s really the same thing. They have the sovereign right over membership, and therefore the courts can’t get involved,” says James Mills, a governance consultant who has advised a number of tribes on enrollment issues and who has helped them write their constitutions.
Members of AIRRO argue that the issue goes beyond matters of jurisdiction. In many cases, no tribal courts exist, meaning that the disenrolled must appeal their case directly to the governing body that ruled against them in the first place.
“We’re not trying to define what is an Indian or if a tribe has a right to determine membership. That’s in stone,” says Mark Maslin, whose wife, the chairwoman of AIRRO’s board of directors, was disenrolled from a tribe in northern California.
Maslin concedes there may indeed be cases where a person or a family does not rightfully belong to a tribe. “The only thing is they have to be fair and provide due process, provide civil rights when they make these decisions. The idea that you can make these decisions by popularity contest is not good.”
Hopes Dashed, Again
In 2006, Pechanga would again take what appeared to outside observers as arbitrary action against a single family line.
In the aftermath of the Miranda disenrollments, the tribe’s membership seemed to grow more cautious. Two hundred people had just been kicked out, and hundreds more were threatened in the Hunter and Garbani families, which had also been targeted by the Concerned Pechanga People. The general council enacted another moratorium, this time to stop all future disenrollment actions until another vote by the entire population decided to allow it again.
Still, the tribal council appeared bent on getting rid of the Hunter line. They had already commissioned a report by a respected anthropologist in Santa Barbara named John Johnson, asking him to look into the genealogy of Paulina Hunter. Hunter, the council claimed, was not Pechanga by descent, and so neither were her descendants. Johnson concluded after exhaustive research that Hunter’s genealogical ties to the Pechanga appeared legitimate, but the council ignored both his report and their own moratorium on disenrollments to expel the Hunters anyway.
Lawrence Madariaga, who was in his 80s and living with his wife on the reservation, was told that despite all he had done for his tribe, he was no longer Pechanga. Mark Lucero, who owned a piece of the reservation, was now permanently locked out, because even if the ban on new enrollments was lifted, he could no longer officially claim to be descended from a Pechanga Indian. And David Cuevas, who had voted to keep people like Lucero out of the tribe, was now stripped of citizenship himself.
What has happened at Pechanga amounts to a gradual but substantial shift in power along family lines. Russell “Butch” Murphy, who had led the Splinter Group in a kind of coup d’etat in the early 1980s, now serves as a duly elected councilman. Meanwhile, many of the tribe members who helped to formulate the tribe’s constitution and bylaws—and, indeed, even helped to redevelop land that at one point was almost completely uninhabited—are no longer even members.
The Debate Rages On
AIRRO casts disenrollment as an issue of civil and human rights. The organization is seeking to get help from the United Nations, from Congress, from state legislators, from anyone who may have the power to effect change.
One of AIRRO’s strategies now is to get legislators to beef up a 40-year-old law called the Indian Civil Rights Act, which was intended to protect tribal people from outside oppression. Ironically, today they want to use it to protect Indians from other Indians.
However, the law as currently written has no teeth, says Gomez. It defines a number of specific protections without authorizing any power to enforce, except in a single case—habeas corpus, which prohibits authorities from detaining anyone for any length of time without charges. That is why they need help from Congress, since no other body has the power to amend the law.
Gomez and other members of AIRRO are no longer shy about asking for help, either. They hold the government at least partially responsible for what is happening in Indian Country because of countless bad treaties and mismanagement by the BIA.
“They’ve created to my way of thinking this phenomenon of disenrollment, and they’re walking away from this responsibility to these people they grouped,” agrees Schmit, from Stand Up For California, referring to past policies in which the BIA had a direct hand in shaping tribal governments.
On the issue of disenrollment, the BIA has maintained a neutral position except in cases where tribes have explicitly ceded authority over enrollment issues to the agency.
“We cannot [get involved], we just simply don’t have the authority in those instances where the tribes do their own enrollments, and we’re not part of that process,” says James Fletcher, head of the BIA’s Southern California regional office. (It should be noted that Fletcher is a member of Pechanga, though he insists that in matters involving his own tribe he always recuses himself.)
The tribe, for its part, would not weigh in for this report. Tribal chairman Mark Macarro did not reply to multiple phone calls and E-mail requests for an interview. He has made the tribe’s position clear in past interviews with other media outlets, however, standing on the tribal sovereignty defense and denying that the disenrollments had anything to do with money or power.
In an open letter to the Pechanga membership in February 2007, in a preemptive response to a local news report about the disenrollments due to air that night, the tribal council claimed that the “integrity of tribal citizenship has nothing to do with gaming or money” and that governments “need the ability to correct past errors to protect the integrity of their citizenry.”
The Pechanga Enrollment Committee “performed investigations over the course of several years to determine whether or not [certain individuals] were legitimate Pechanga descendants,” the letter read. “The proceedings were conducted in accordance with tribal law, custom and tradition and guaranteed the due process rights of the individuals in question just as Congress intended.”
Mills, the tribal government consultant, takes a firmly neutral stance in the debate, insisting that if there is to be a solution to the problem of disenrollment, it must come from the tribes. He says that whatever requirement a tribe may set for enrollment it can also use to disenroll someone.
“Whether that’s fair or just is not the issue. Whether it’s legal or not is the issue. And that’s unfortunate, and it sounds unfair, and maybe it is, but that’s the reality,” Mills says.
Lucero, for his part, has not given up hope. He says he still wants to take his rightful place in the tribe, but he has expanded the fight to encompass others, too.
“It was once upon a time just about Pechanga,” Lucero says. “But I realized, it's not about Pechanga. It's about the whole country as one, as a whole, the whole Indian Country. That's what you got to fight for, because they are getting attacked just as much as we are. So when we stand together, as one, we can win."
Cuevas has since come to terms with his disenrollment, which, surprisingly, he considers one of the best things ever to have happened to him. Being kicked out of his tribe has forced him to take an honest look at his actions and reassess his priorities in life, he says. He has abandoned what he considered a bad business partnership and now wants to leverage his experience in the world of finance to help tribes develop sustainable streams of income other than gaming.
As for Gomez, he does not appear to be hurting financially. He saved much of his per capita money, working all the while, and he lives in a comfortable two-story house in Temecula.
Though he does not expect ever to be allowed to rejoin the Pechanga Band, he seems at peace with what has happened. He says he knows who he is, whatever the tribal council has concluded about him. And he works now for another tribe, continuing his habit of service to Indian Country. He also continues to lead AIRRO in its fight for outside intervention.
Gomez’s boys? They now attend a neighboring tribal school, continuing to learn Luiseño, and listening to the stories that he insists are their heritage.
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