Andrew Westney of Law360, New York has this excellent piece on the roles of attorneys who are partly responsible for the erosion of tribal sovereignty, even by doing the corrupt councils bidding.
Lawyers serving Native American governments are hurting tribal sovereignty by participating in disenrollment procedures that don’t offer enough legal protections to members and should hold
themselves responsible for making sure members’ rights aren’t trampled upon, attorneys say.
National Native American Bar Association earlier this month issued a formal resolution calling it “immoral and unethical” for lawyers to encourage or take part in disenrollment — the process of ousting tribe members — that lacks adequate due process, equal protection or a remedy for the violation of the civil rights of tribe members.
Such measures are vital to ensure attorneys are protecting tribal sovereignty by maintaining a fair process for disenrolling members, said Robert A. Rosette, founding partner of Rosette LLP, which exclusively represents tribal governments.
“If a tribe violates its own laws, there’s no greater erosion of tribal sovereignty,” Rosette said. “If you
have an attorney who is culpable in facilitating a tribe to disenroll its own people and not provide due
process, those attorneys ought to be held accountable.”
Disenrollment has become increasingly prevalent as an upsurge in tribal gaming revenues since the Indian Gaming Regulatory Act was passed in 1988 has raised the stakes for tribes. Fewer tribe members means a bigger share for those remaining on the rolls, attorneys say.
University of Minnesota Law School professor David E. Wilkins, who is writing a book on the history of tribal disenrollment, said the economic dimension of gaming combines with political conflicts and personal feuds to spark membership disputes.
“I don’t think those things would’ve culminated in formal disenrollment if there had not been this economic driving force,” he said.
In a statement announcing the resolution, the NNABA said that the Picayune Rancheria of Chukchansi Indians in California has seen its numbers drop from 1,850 to 750 members in 10 years amid a power struggle among tribal council factions. An armed conflict between two of the rival leadership groups over casino revenues and disenrollment led to the shutdown of the Chukchansi Gold Resort and Casino in October.
Cathy Cory, a former member of the tribe who was disenrolled in 2006 along with over 70 relatives, blamed attorneys for their part in the dwindling numbers of the tribe, according to the statement.
“It is the lawyers who barged in from the outside and helped rip our tribe in half, quite literally,” Cory
said in the statement.
Tribes in 17 states or more have engaged in disenrollment, and Cory and other disenrolled Picayune Rancheria members have formed a group to campaign against the practice, along with members disenrolled by the Nooksack Indian Tribe of Washington and the Confederated Tribes of the Grand Ronde Community of Oregon, according to the statement.
Wilkins, a member of the Lumbee Tribe of North Carolina, applauded the bar association’s resolution, the first such statement criticizing enrollment from a national Native American group, saying kicking out fellow tribe members goes against the notion of traditional identity.
“It makes no sense on any level, because a tribe historically is an extended family in which everybody was related,” Wilkins said. “We’re doing things that are fundamentally wrong to how we have always understood who we are.”
Having the right to determine tribal membership is key to tribal sovereignty and self-determination, but those enrolled in the tribe should have greater protections, said Pilar Thomas, of counsel with Lewis Roca Rothgerber LLP.
“Once they become members, however you determine that, there ought to be a higher standard for removing people from that body politic,” Thomas said.
Tribes have many different approaches to disenrollment and safeguarding civil rights in the process, with mechanisms that may involve tribal councils, tribal courts and disenrollment committees. Because tribes are sovereign governments, ideas of due process and equal protection under the U.S. Constitution may inform tribal decisions but aren’t binding on the tribe, Thomas said.
The bar association’s resolution points to the Indian Civil Rights Act of 1968, a congressional effort to
extend certain constitutional protections to Indian Country, as prohibiting a tribe from denying equal
protection or due process to anyone under its jurisdiction when exercising its powers of self government.
But the U.S. Supreme Court’s decision in Santa Clara Pueblo v. Martinez in 1978, in which a female member of the Santa Clara Pueblo alleged that the tribe and its governor violated the ICRA by denying tribal membership to the children of female members who married outside the tribe, has largely kept federal courts from becoming involved in tribal membership matters, Thomas said.
The high court said that while Congress in enacting the ICRA sought to strengthen the position of individual tribe members in respect to their tribes, it also intended to promote the tribes’ right to self-government. The court ultimately ruled that the law didn’t authorize civil actions against either the tribe or its officers.
“There has been very little litigation over what the law means, because tribes will invariably invoke their immunity to suit to avoid ICRA claims,” Thomas said.
For tribes, due process may include U.S. constitutional concepts — with some tribes actually incorporating the ICRA into their own constitutions — but also should include the particular tribe’s norms, laws, values and processes, which might be quite different from one tribe to another, Thomas said.
“The bigger challenge here, and the real reason for the resolution as I understand it, is that in many of
these cases there is no process,” Thomas said.
The resolution puts an ethical burden on attorneys to decide when they should walk away from a disenrollment process that isn’t affording protections to tribe members, Thomas said.
Thomas said that her work as a trial attorney for the U.S. Department of Justice, as well as a period serving as interim attorney general of her own Pascua Yaqui Tribe, instilled in her the importance for government attorneys of serving both their clients and a greater good.
“When you represent a government as an attorney, you’re not just representing government leaders but the tribe as a whole, the government as a whole,” Thomas said. “There’s a little bit of a higher standard there.”
Gabriel S. Galanda of Galanda Broadman PLLC, who helped draft the bar association’s resolution, said that if tribes and their attorneys don’t deal with the civil rights issues associated with removing members, they may leave the process open to outside interference.
“It’s very fair to say Indian Country doesn’t want Congress or the Supreme Court asking and answering the question, ‘Who is an Indian?’” Galanda said.
Historically, disenrollment isn’t truly an inherent element of tribal sovereignty, having been imposed upon tribes in the 1930s under the Indian Reorganization Act as an element of self-determination, Galanda said.
After tribes were pressed to accept disenrollment in their constitutions, lawyers have always been part of the “heavily legalistic” process, he said. Attorneys can become part of political power contests in tribal government, as leaders can use disenrollment as a tool to defeat their opponents, Galanda said.
“Disenrollment more often than not is about power and greed,” Galanda said. “Tribal leaders maintain the power they currently have by disenfranchising anybody who may challenge their power.”
For example, in a tribal gaming dispute, lawyers may be able to disallow gaming per capita money to members that have been proposed for disenrollment or provisionally disenrolled, making it harder for them to hire their own legal representation to fight the disenrollment, Galanda said.
Potential improvements to the process could include a congressional fix of the ICRA that would allow for federal court review of any proposed disenrollment, truth and reconciliation tribunals, international human rights efforts for policy reform, or improvement of tribal laws by tribes themselves, Galanda said.
National Native American groups like the National Congress of American Indians and theNative American Rights Fund also could contribute to a solution by encouraging tribes to examine their disenrollment practices, attorneys said.
Finding a way to protect tribe members in disenrollment is needed not only to protect against the painful personal loss of being removed from a tribe, but also to allow them to continue to benefit from federal programs that are available only to tribe members, Thomas said.
“The tribe should not be able to make a determination for you as an individual that you’re not longer entitled to federal benefits,” Thomas said. “Only the federal government can say something about the loss of federal benefits.”
While federal courts may continue to be reluctant to address tribal membership disputes under ICRA, the law could be applied by the courts to require more protections where individuals’ access to federal programs is involved, Thomas said.
Government agencies could also play a larger role in ensuring civil rights for tribe members facing disenrollment, Rosette said.
“There needs to be more U.S. involvement as a trustee for tribal government, through theBureau of Indian Affairs or the Department of the Interior, to assist tribes both with regard to disenrollment issues as well as intratribal disputes,” Rosette said.
Galanda hopes that the bar association’s resolution will help overcome a widespread reluctance among Native American groups and individuals to criticize tribes that are involved in disenrollment, and the attorneys who work for them.
“The ultimate risk of tribal people not discussing and resolving the disenrollment problem is that someone else is going to discuss it for us and resolve it in a way that most likely won’t be to our liking,” Galanda said.
OP: IT's NEVER TOO LATE TO DO THE RIGHT THING. And these attorneys are finally hearing what we've been saying for a decade. Protect the individual Indian from corrupt tribal governments