This excerpt discusses the INJUSTICE of Ex-Post facto stripping of citizenship, hidden behind the cute nickname:
Approximately 80 federally recognized tribes are practicing disenrollment. The Supreme Court’s Santa Clara ruling has sanctioned these actions, but why these acts are unfolding is still not truly understood. Gabriel Galanda speculates that gaming per capita could be a reason.
|Dr. Deron Marquez|
In a forthcoming publication, "Dismembered: Banishment, Disenrollment & Statelessness in Indian Country," Dr. Wilkins produces categorical findings on disenrollment, banishment, gaming and per capita payments. In California, according to the research, 23 tribes are engaged in disenrollment and 2 in banishment.
Of the 25 California tribes, 20 operate gaming facilities of which 17 disburse per capita checks. Given the high occurrences in California, there are two cases that exemplify disenrollment. Both include tribal governments that engage in gaming operations and both engage in per capita programs. Also, both are located in Southern California.
Jeffredo v. Macarro
The Ninth Circuit Court of Appeals has entertained, since 2010, four cases dealing with disenrollment.13 In all four cases, the tribal governments and officers were immune from suite and the question of disenrollment was answered via Santa Clara. In Jeffredo v. Macarro (2010), the Court relied upon Santa Clara, but the circumstances in Jeffredo differ.
The Pechanga Band of the Luiseno Mission Indians, a federally recognized tribe, adopted their constitution in 1978, which includes qualifications for membership. As described in Jeffredo, to qualify, lineal descent from “original Pechanga Temecula people…prior to 1928 will be accepted.” The issue for Jeffredo was
Section A of the tribe’s constitutional requirement: “Applicant must show proof of Lineal Descent from original Pechanga Temecula people” and according to the court, in late 2002, “the Enrollment Committee received information from its members alleging that a number of Pechanga Tribe members” were not original.
Thus, the Enrollment Committee commenced an investigation and 8 years later, we have Judge Smith’s Jeffredo ruling. Part of the ruling was a dissent by Judge Wilken. He stated: Appellants, enrolled members of the Pechanga Tribe since birth, filed a petition for a writ of habeas corpus under the Indian Civil Rights Act (ICRA) asserting that their Tribal Council violated the due process, equal protection, free speech and cruel and unusual punishment clauses of the Act when it stripped them of membership in the Tribe.
The membership criteria that the Tribal Council applied were not established until 1979; the procedures it used to disenroll Tribal members were not established until 1988; and the Tribal Council did not begin disenrolling large numbers of members until recently, when the Tribe's casino profits became a major source of revenue Appellants allege that they are victims of the Tribal Council's greed associated with these casinos.
Interestingly, the lone footnote in the dissent, as marked above, states: “At the time of Appellants' disenrollment, every adult Pechangan received a per capita benefit of over $250,000 per year. Even the majority opinion shared concern with Pechanga’s governmental actions of self-termination practices. Judge Smith’s majority opinion contains a concerning phrase– “despite the potential injustice of this situation” – possessing strong descriptive terms. The term “injustice” should be remembered when discussing ex post facto disenrollment.
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