Tuesday, February 4, 2020

Tribal Sovereignty and a Potential Solution to Tribal Disenrollment: Mulvaney:

Writing in American Indian Law Journal Executive Editor Brent Mulvaney discusses Tribal Disenrollment and it's effects on sovereignty.

The article is The Tribal Franchise: An Expression of Tribal Sovereignty and a Potential Solution to Mass Disenrollment

...Because both the Ninth Circuit Court of Appeals and the Appellants acknowledged that federal courts lack jurisdiction to review tribal membership decisions,251 it is important to recognize that it is possible for tribal officials to constrain facts and the legislative authority of their general membership to serve personal ends that are wholly divorced from the will of the tribe. 

When genuine members of any tribe face disenrollment and the unified will of their tribal community, as expressed through the tribal franchise and recognized in a tribal constitution, cannot preserve their personal, cultural, and biological identities, they have no choice but to turn to litigation. 

Here, the Appellants exhausted the remedies provided by the tribe and were left with no other option than to bring their challenge to federal court. Ideally, such recourse would be amenable to the best argument. However, the only argument to which the federal judiciary is—and arguably ought to be—receptive is an ICRA-based challenge alleging that petitioners have been detained. 

As Jeffredo and other cases illustrate, such challenges have a tendency to prove futile in the disenrollment context. Assuming that the status quo is maintained, this case illustrates the fact that the only effective prophylactic for preventing unjust disenrollment and the potential spread of this epidemic is ensuring that the popular vote of tribal members carries that level of authority that has been recognized in countless tribal constitutions, which is the authority from which every other power of governance arises: the will of the people. 

Even if the authority of those facing disenrollment is diminished, the remainder of the general membership must have some way to challenge those actions of a tribal council that it finds unjust. 

Learn More on Disenrollment, Ethnic Cleansing in Indian Gaming Country at these Links:

Gaming Revenue Blamed for Disenrollment
Disenrollment is paper Genocide
CA Tribal Cleansing
TRIBAL TERRORISM includes Banishment


Anonymous said...

If Sovereignty is that only the Tribe as a whole is Sovereign then if the majority of the Tribes members attack the greedy corrupt
leaders that are causing all the killing off of Native Americans because of greed then they can claim Sovereignty and not be charged.
Or does it only apply to the leaders of the Tribe which they use after they hurt their own people by disenrollment and banishment.
Which they say that a Tribe has the right to say who and who is not a Tribal member but never involve the whole Tribe when making this kind of decision which is not the Tribe making it, its the EC's that are responsible
for this issue and not the Tribe.
So how can they use Sovereignty to cover their fraud.

Anonymous said...

Disenrollment is not custom or tradition. Dishonoring the truth in recorded oral recognition is not custom or tradition. It is clearly greed and disrespectful of the Indian way. Honor the truth is more traditional whether we agree or disagree is more respectful.