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Wednesday, December 18, 2019

Disenrollment is a HIGH STAKES BLOOD BATTLE From Ancestor to the Unborn

An early 2004 story on disenrollments at Pechanga and Redding Rancherias in the Chicago Tribune, with AIM's Laura Wass commenting on the abuses


John Gomez Jr. is the great-great-great-great grandson of tribal forebear Pablo Apish, whose 1842 land grant from Mexico is now the site of a casino and hotel operated by the Pechanga Band of Luiseno Mission Indians in Southern California.
But last March, Gomez and 133 adult relatives were banished by the tribe after a rival faction persuaded tribal leaders to conclude that Apish's granddaughter didn't live on the reservation at the turn of the previous century.

Her alleged quitting of tribal land--which Gomez and his relatives dispute--eliminated her as an original tribal member. That meant her 134 adult descendants today plus dozens of children, the largest family in the group, suddenly were cut from the tribal tree.
It also meant that Gomez and his 133 family members were out of casino profits that amounted to $15,000 a month to each of the 900 adults in the tribe, as well as health care, life insurance and other benefits.


"It was greed," said Gomez, 36, a paralegal in Temecula who was a legislative analyst for the Pechanga Band from 2001 to 2003. "If you get rid of 130 people, your portion of the gaming proceeds gets larger."
With the rapid expansion of Indian casinos, stories like Gomez's are becoming more common: California tribes are increasingly disenrolling long-standing members, pitting families against families as they divide up lucrative gaming profits.
Lawyers for both sides say the California cases could have widespread impact for the 2.5 million American Indians and their hundreds of tribes nationwide, especially those with membership disputes involving profits from land deals, smoke shops and the like.
The ejected members say their ousters are arbitrary and unjust--even when, in one instance, DNA evidence appears more than 99 percent conclusive in establishing bloodlines.


Also at stake is tribal sovereignty, the broad powers granted to each American Indian nation to govern itself and its membership. Exiled families are now turning to California courts to challenge this sovereign immunity and halt the banishments. 
While judges in the past have been reluctant to tread on internal tribal matters, lawsuits filed by ousted families such as Gomez's are winning jurisdiction in state and federal courts in California. They are significant initial victories for the castoffs, though long legal battles are certain.
The exiles have been able to argue their plight in California state courts under a 1953 federal law. Public Law 280 allows Indians in California and several other states, once too poor to establish their own courts, to use state judges in disputes between members.
$100,000 annual payments
In the past decade or so, the emergence of tribal gaming has enriched once-poor American Indians, who now can receive annual casino revenue payments exceeding $100,000 a year.
Those expelled, who say they don't oppose sovereignty, argue that tribal councils are violating the Indian Civil Rights Acts of 1968 when they dispossess members of their own racial identities, despite bloodline evidence.
Attorneys for those families say the U.S. Supreme Court ultimately may have to resolve the disenrollments. Meanwhile, ousted families also have formed a loose coalition in seeking congressional intervention, though that seems unlikely.
In court documents, attorneys for Pechanga leaders say the state courts must stay out of membership disputes, citing a 1978 U.S. Supreme Court case that said Indians' civil-rights issues belong in tribal forums except for habeas corpus matters of punishments and jailings.
The tribal attorneys say the Indian nation adhered to its constitutional procedures for disenrollment once families were identified as not having met membership criteria.
But conditions in some Indian lands have changed dramatically since that Supreme Court ruling because "in 1978, they didn't think of rich Indian tribes with casinos," said Michael Stuhff, the Las Vegas attorney representing 76 members of the Foreman family ousted this year from the Redding Rancheria tribe in Northern California, which owns a casino.
"They didn't think that there's going to be some gaming tribes that are going to take advantage of the members," Stuhff said. "There's an old Chinese aphorism that my father used to use: `You really don't know somebody until you have to share an inheritance with them.'"
Gomez and his 133 relatives, who had shared the proceeds of one of the state's more successful tribal casinos in Temecula, won a ruling this summer from a Riverside County judge who agreed to hear the membership controversy.
And in a federal court in Fresno last month, a judge agreed to preside over a case of two women expelled from the Tachi-Yokut tribe. One of the women, a former tribal treasurer, was removed from tribal rolls after she called for independent review of the tribe's casino income.
"I think this is a real trend going on because I think the judges are frustrated by tribes hiding behind sovereignty. There's a movement in these courthouses," said attorney Jon Velie of Norman, Okla., who's representing Gomez and his relatives.
"Banishment is sort of a criminal punishment. It's punitive in nature," Velie said. "Sovereignty is still a good thing, but tribal corruption isn't."
Not all ejected families are enjoying court victories. Stuhff's clients, the extended Foreman family thrown out of the Redding Rancheria tribe, lost before a state trial judge. The family has appealed.
Laura Wass, area director of the American Indian Movement in Fresno, said she has counted 1,300 tribal members who have been disenrolled in California, and 700 more are facing ouster. AIM, an Indian civil rights group known in the past for its militancy, has sided with the disenrolled.
In all, the 2,000 come from 15 of the state's more than 100 tribes, and all but one of those 15 tribes have casinos; the 15th receives casino proceeds under a sharing agreement with gaming tribes, Wass said.
"It's one of the most devastating things to hit Indian country in California--ever," Wass said. "The tearing up of these families is something I can hardly swallow any more.
"The greatest downfall of Indian country is the infighting because people won't come together. Then a powerful family that has had it out for a less powerful family for a number of years can say, `You're out of here' and sign a document and they're gone," Wass said.
John Schumacher, an attorney for the Pechanga enrollment committee being sued by Gomez's extended family, said he and his clients won't comment while they appeal the trial judge's acceptance of the case.
But in court documents filed by Schumacher, Pechanga enrollment officials say they abided by civil-rights laws and internal disenrollment procedures in place since 1988, well before the tribe opened its casino in the mid-1990s.
"The Pechanga Band has over a century of experience in governing and dealing fairly with its citizens and those within its territory," Schumacher said in court papers.
In Northern California, the Redding Rancheria tribe this year ejected the 76 members of the extended Foreman family from the 295-member Indian group, said Mark Maslin, 46, a Foreman family spokesman. His wife had been a tribal council member and now is among the banished.
The tribal council and the enrollment committee determined that a onetime tribal elder, Lorena Butler, who died in 1995, wasn't the daughter of ancestor Virginia Timmons, amid claims that Timmons never had children, Maslin said.
The Foreman family arranged for tests of Butler's and Timmons' remains in 2003, and two DNA labs showed 99.978 percent and 99.89 percent probabilities of a mother-daughter relationship, Maslin said. Butler didn't have a birth certificate because when she was born in 1916, Indians weren't allowed in any hospitals, Maslin said.
But the tribal council wanted a birth certificate, and one member later remarked about the DNA tests, "It's not 100 percent. ... It's still a possibility" that maternity didn't exist, according to Maslin, whose wife, Carla Foreman Maslin, is Butler's granddaughter.
Family appeals ruling
Timmons' Indian heritage was undisputed because she was one of 17 original recipients of reservation land in 1958, when homes didn't have plumbing, Maslin said. Lorena Butler re-established the tribe's government in 1987 and was elected treasurer; her son became tribal chairman and served on the tribal council until 2003, Maslin said.
With the ejection of the Foreman family, the per capita payouts to remaining tribal members from casino profits has risen to $5,000 a month from $3,000, Maslin said.
A California trial judge declined to hear the Foreman case against the tribe, saying the court lacked jurisdiction, and the family has appealed to the state Supreme Court. Maslin has formed a group of disenrolled Indians called Civil Rights for American Indians, and he and Wass want Congress to review the disenrollments.
"After you get over the shock, it just sent them all into a deep, deep depression," Maslin said of his wife and her relatives. "It's somebody saying you are not who you are."

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