Wednesday, April 27, 2016

ELEM Indian Colony Attorney ANTHONY COHEN: Disenrollments Are OUT for Me; Tribe Determined to Disenroll

Finally, a tribal attorney seems to have had enough of the stench of tribal disenrollment.   Elem Indian Colony, the subject of recent protest for it's unethical practices, will have to find another  attorney.

 With disenrollment-related events now happening at Elem Indian Colony, a Lake County tribe that has been my client for many years, and the public accusations that I am a supporter or collaborator in those disenrollments, I have determined I need to do two things:  1) Clarify what my role has been at Elem; and 2) step away from all further work for Elem unless/until the Tribe heals itself.

Good start, Mr. Cohen

 I was asked over a year ago to review a draft disenrollment ordinance that was, ironically, proposed by one of the people now on the disenrollment list.  I refused, and strongly advised against disenrollment as a punishment, no matter what the alleged offenses were.  The draft ordinance lacked due process provisions and was inconsistent with the Indian Civil Rights Act, the only federal law that protects tribal members from their tribal governments. 

Most ordinances are written so that their IS little due process.

When a tribe adopts the Indian Civil Rights Act into its own constitution (as, for example Dry Creek has), I believe that actions of its elected officials that violate the ICRA are outside the scope of their tribal authority and they are therefore not protected by the tribe’s sovereign immunity. They can therefore be sued in state court under PL-280. The suit would ask the court to rule that they are speaking only as individuals, not for the tribe, to enjoin them from claiming to be speaking for the tribe, and to find them liable for defamation for claiming members have been disenrolled. This could be the way to get around Santa Clara Pueblo v Martinez, which said the ICRA is a nice principle but otherwise worthless

Courts have been reluctant to do the right thing, legally speaking as they choose to accept Santa Clara Pueblo interpretation that is misguided.  

When I was recently informed of the intended disenrollments and asked to amend the ordinance to include disenrollment, I strongly expressed my opinion that it was wrong, but I did add the disenrollment paragraph to the existing ordinance for one reason, and one reason only:  There was nothing I could do to stop the disenrollments, but by carefully adding that sanction to the ICRA-protected disenfranchisement ordinance, I could at least ensure that people accused of crimes and threatened with disenrollment were entitled to the protections of ICRA and would have access to the state and/or federal court system to remedy any violations.  THAT HAS BEEN MY ONLY ROLE in this current disenrollment disaster, and I have from day one made it clear I will have no other role in it.

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Reinstatement_Restitution said...

It appears that Mr. Cohen is not familiar with disenrollment cases in Indian Country. The Britten descendants of the Pala Band of Mission Indians already filed suit against the Pala Executive Committee alleging ICRA and civil rights violations and that the tribal leaders were not acting in their official capacity when they enacted disenrollments and therefore were not immune to civil suit. District Court Southern California with Judge William Hayes presiding dismissed on the grounds of sovereign immunity and the decision was upheld by the Ninth Circuit Court of Appeals.

Though it is good to see an attorney act ethically and incorporate ICRA provisions into a tribe's enrollment ordinance, Mr. Cohen also appears to have disregarded the fact that a tribe's attorney is employed by the tribe and not by the tribal leaders. A tribal attorney is betraying his client's trust when he acts in any way that harms the general membership, including those who are tagged for disenrollment.

What ends up happening when a tribal attorney acts to assist tribal leaders in amending enrollment ordinances to include disenrollment provision is that tribal members pay their attorney to harm the tribe's members. That is a violation of the Rules of Profession Conduct in any state.

The correct procedure in such cases would be for the tribe's attorney to require a referendum to approve an amendment to the enrollment ordinance before incorporating any provision for disenrollment. At least then the general membership would get an opportunity to review and approve such a change.

I am actually amazed that more tribal attorneys do not recognize that their client is the Tribe at large and that their obligation is to the members. Payment comes from the Tribe at large and not from the tribal leaders and the legal contract for representation is in the name of the tribe and not of the tribal leaders. Therefore the attorney represents the Tribe at Large.

If tribal leaders require personal representation then they should retain their own attorneys or solicit the approval of the tribe to use the tribe's attorney but only if they were acting in their official capacity in the cause of action cited in a civil suit or criminal case.

Also the incorporation of the ICRA is a useless gesture. There is no provision for enforcement in the ICRA. Tribes and the BIA regularly violate the ICRA and deny due process to disenrollees. The Pala Constitution guarantees the rights of members and cites the ICRA. It didn't stop the disenrollments and it did not guarantee the rights of the disenrollees.

It doesn't matter to the Tribal leaders; it doesn't matter to the BIA; it doesn't matter to the courts. Unless it is a detention issue involving habeas corpus there is no enforcement requirement in the ICRA.

Now if Mr. Cohen wants to expand on his statements, and really stipulate what the responsibilities of a tribal attorney are in the ethical representation of the tribe and its members that would be a huge step forward.

Anonymous said...

My thoughts exactly, ICRA has been ruled un-enforceable due to sovereign immunity... I guess someone could always take another run at it but the outcome would not likely be different.

Now on a different note.... Been thinking about this and probably others have too, but one solution if there is one other than people just acting right and not block headed. So tribes through self governance/PL-92-638 can contract any federal program directly benefiting its members, on the principle that only the Indian Tribe knows best on how to serve its people. One of those services that most tribe's contract or take back from the BIA/U.S. Government is enrollment services... I keep hearing calls for the BIA to get involved and fix things... the problem is, that the BIA doesn't have authority unless the tribal constitution gives then the authority and if the tribe explicitly wants them to get involved. So if a tribe/tribal members don't trust your tribal government to handle your enrollment matters, you can push to give that responsibility back to the BIA, and they really couldn't refuse.... they wouldn't be happy with the extra work but it's a part of their trust responsibilities under retro-cession. Now... that being said... I doubt members would be happy with the enrollment calls made by the BIA any more than they are by their tribal governments... but just saying so many calls for the BIA to get involved, well turn your enrollment back over to them,fight to amend your constitution and give them the power to make the call.

Reinstatement_Restitution said...

There is another point that should be understood regarding the differences in jurisdiction. Mr. Cohen believes that disenrolled tribal members can sue their tribal leaders for acting outside their authority using ICRA violations as cause of action if the ICRA is embodied in the enrollment ordinance or governing document. He cites PL-280 which transfers jurisdiction over criminal offenses on reservations to the state. The problem is that ICRA violations are civil offenses (civil rights you know) and the ICRA is federal legislature. I think anyone bringing such a cause of action before the court will find their case dismissed due to lack of jurisdiction as well as sovereign immunity.

I wish I could say I have confidence in this legal approach, but I think most tribal attorneys would move for dismissal on these grounds and the court would grant such a motion.

Let's go back to the idea of tribal attorneys with ethics who believe that the provisions of the ICRA should be incorporated in enrollment ordinances or governing documents. The idea is a good one in theory but we have seen how it gets twisted in practice. The only thing lacking is the provision for enforcement. Any tribal attorney that wants the civil rights of tribal members to be guaranteed has to include a provision for enforcement such that there is an instant and effective consequence for the violation of tribal member's civil rights.

Consequences for such violation could be immediate suspension from tribal office followed by a hearing before the general membership. Perhaps something stronger would be immediate removal from office, suspension of voting rights or the right to participate in tribal government, withholding of tribal benefits, etc.

Anything that is mandatory and immediate would deter tribal leaders from acting without respect for the rights of members.

Tony Cohen said...

Public law 280 DOES confer civil jurisdiction upon state courts to decide civil disputes in Indian Country in California:

28 U.S.C. § 1360. State civil jurisdiction in actions to which Indians are parties

(a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State:

Reinstatement_Restitution said...

There is a Catch 22 with disenrollment that people don't discover until they try to exercise their rights as Indians. Only enrolled tribal members are eligible for federal programs and services. The reality is even worse than that. The federal government only recognizes enrolled members of federally acknowledged tribes as Indians. For the purposes of filing suit as an Indian in either state or federal court and individual must be recognized as an Indian.

So disenrollment undermines the Indian status of plaintiffs that invoke laws that pertain to Indians. In plain language disenrollees are not Indians in the eyes of the court. Motion to dismiss due to lack of standing would most probably be granted.

Reinstatement_Restitution said...

And of course IRA is federal law and not enforceable at either the federal or state level...

Anonymous said...

Reinstatement_Restitution, thank you for putting Tony Cohen in his place. You are obviously a lot more educated in indian law then him. I read his website confessional and he states he is done. The reality is he was not "done" until the local and national media reported the story. And it wasn't until he felt pressure from protests and most importantly other tribal leaders that he decided to step away. Otherwise he would still be representing elem and moving forward with the disenrollments. After all, according to his website he did revise the disenrollment ordinance for elem. He assisted in writing the disenfranchisement ordinance which takes a Native Americans voting rights and any benefit for being native away from them. Regardless of how I look at this,Tony Cohen is just as responsible as the tribal council he represented. In the United States if you participate in the murder of a human being, but you don't actually pull the trigger or hold the knife, you are still just as guilty of murder. Regardless of how you felt when it was happening. And that applies to state AND federal law. The truth is Tony Cohen wanted the people of elem removed from the land because he wanted to broker a large casino deal in Vallejo. But in order to do that he had to evict all the people from their homeland of elem and deem the reservation uninhabitable. He tried to accomplish this by disenrollments and evictions. If you don't believe me look at his presentation to the city of Vallejo on the city website. So he tried to evict women, children and elders to make himself rich. I hope Tony Cohen is never hired by another tribe in California. The more I read I see that him and Les Marston both have a history of being counsel for tribes that disenroll. It's just that this one went to national news. And when they were exposed they rose from there snake holes, blamed each other and slithered back into the ground. .
Creator sees all things...good and bad....

Reinstatement_Restitution said...

It seems everywhere you go in Indian Country there are people who try to take advantage of Indians. This attorney claims to have pangs of conscience and agonizes over disenrollment, yet admits drafting an enrollment ordinance with provision for disenrollment. Such actions belie motives that must be examined carefully. The idea that incorporating the ICRA in a governing document on the surface appears to be an effort to protect the rights of individual Indians, yet only an incompetent tribal attorney would be unaware of that the ICRA can't be enforced. It is talking out of both sides of the mouth.

However, it is good to have a tribal attorney comment on the problems tribal leaders create when they disenroll, and to suggest that disenrollees have a cause of action even though it has little chance for success. I personally believe that civil rights are being violated and that both the tribe and the BIA is the violator in many cases. The opportunity to file suit against the BIA under the Administrative Procedures Act for failure to provide due process before denying eligibility to disenrollees is still an option.

To my knowledge no has attempted this legal stategy, yet the BIA is sworn to uphold the ICRA and the Constitution. The BIA is a federal agency and cannot violate federal law. Due process must be provided before denying eligibility yet the BIA regularly tells disenrollees that they do not qualify for federal programs and services because they are not members of a federally recognized tribe.

The BIA has a duty to notify disenrollees that their eligibility status is under review, to allow disenrollees to appeal, and to provide a hearing before an independent tribunal where an appellant can present arguments against the change in status. None of this is offered to disenrollees.

So now we know that tribes should put provision for enforcement of civil rights violations in their governing documents and enrollment ordinances, and the BIA should provide due process to disenrollees. Whatever the reason for the disenrollment, the BIA maintains a membership roll of a federally recognized tribe. It does not require interpretation of tribal law to review the tribe's action and see if it affects an individual's standing as an Indian as per the definition of Indian in the Snyder Act.

These matters are for the judiciary to decide, but the BIA preempts judicial review by allowing tribes to determine eligibility for programs and services. The programs and services are funded by the federal government to benefit the poorest and most disadvantaged minority in the America. The tribes don't pay cent one. Why do they get to say who gets help from the feds and who doesn't? It is all wrong.