For an Indian law attorney, few insults cut as deeply as a comparison to former Senator Slade Gorton. For decades the Washington State Republican lawmaker attacked Tribal sovereignty, at one point introducing legislation that would authorize civil actions against tribes in Federal and state courts.
So when such a comparison was recently made — i.e. that anti-disenrollment litigation essentially picks up where Gorton left off — I was impressed by its naiveté. The opposite is true. By proceeding recklessly with mass disenrollments and standing behind sovereign immunity even as to their own citizens, a handful of tribal governments are threatening the very existence of tribal sovereignty.
It is Tribes engaged in mass disenrollment efforts that threaten to complete Gorton’s work. What Gorton failed to achieve in Congress, membership-eliminating Tribes will achieve on the ground in Indian Country. Tribes will not be able to halve and quarter their memberships and maintain their position in the federalist structure. Tribes will not be able to violate their members’ human rights while Congress, in particular, sits idly by. They will create too many enemies. Critical race theorists posit that 19th Century federal policies of termination dovetail with the Tribal self-termination of the 21st Century. The argument might go that blood quantum in particular and membership ordinances in general will inherently destroy tribes — that the federal government will achieve through inter-marriage and tribal self-governance in enrollment practices what it couldn’t accomplish through Termination and the Dawes Act. Those arguments are as accurate as anything else in the sordid context of political disenrollment — TV shows included.
But practically, if we believe that disenrollment will be the camel’s nose under the tent for tribal sovereignty, the prudent approach is to make a kind of Pascal’s wager, and take the safe road. Through court battles, anti-disenrollment and human-rights activists will attack sovereign immunity. Tribal people will not lie down and let their governments tell them they are not Indian.
And while battles wage in court, enemies of tribes in federal and state office will use the chaos to attack tribal interests. Consider that often tribes use membership numbers to justify jurisdictional power or federal entitlements. If those numbers were fraudulent, don’t expect cash-strapped non-tribal governments to turn their cheeks. The incremental cost of not terminating members is insignificant compared with the abrogation of sovereign immunity or sovereignty that disenrollment will cause. So not only is there a theoretical basis for fighting disenrollment, but rationality requires us to wager that Tribes are stronger when they are either inclusive or static. A tribal government bets its very existence by disenrolling those who belong, or at least belonged under a previous administration. And because there are so many easy ways to avoid disenrollment — constitutional super-majority requirements as at Graton; statutes of limitation on disenrollment actions; moratoriums on enrollment; adoptions — it’s not a bet any government should make.
