Indigenous America is one again facing off with disenrollment.
History shows that the rise and fall of disenrollment correlates to the federal government’s behavior toward that tribal self-terminationist practice.
The United States owes each Tribal citizen a trust responsibility of exacting care and loyalty, which includes protection against politically motivated disenrollment. Ironically, though, federal laws have been catalysts for every disenrollment.
Disenrollment stems from a confluence of historic and modern federal forces:
· Racialized notions of Indian Tribal individual status, like the trope of “mixed blood” under the federal Dawes Act in the late 1800s;
· Blood quantum, the Euro-centric racial fiction created and codified by Congress dating back to 1908;
· Non-traditional constitutional governance, membership, and disenrollment systems, as per the federal Indian Reorganization Act (IRA) of 1934;
· “Pro rata” or “per capita” distributions of Tribal communal wealth to enrolled individuals, thanks to Congress’ Lacey Act of 1907 and Indian Gaming Regulatory Act of 1988;
· Congress’ termination of Tribes in the 1950s and the reassembly and federal re-recognition of Tribes since the 1970s; and
· “[G]raft, corruption, and the making of decisions by inexpert minds,” which, in 1941, IRA-drafter Felix Cohen foretold of non-Indigenous power systems.
In each of these ways, one after the next, the federal government has decimated Indigenous kinship systems, or what Dakota anthropologist Ella Deloria described as community norms of “decency and order”—in essence, “achieving civility, good manners, and a sense of responsibility for every individual dealt with. “
Even worse, the United States has annihilated certain Indigenous communities’ inherent ability to self-resolve internal crises; or, as Deloria explained, to enforce “the rules imposed by kinship.” Too many of those imperiled communities now risk self-annihilation without federal protection that will enable Tribal kinship revival.
The United States’ failed reliance upon Tribal self-determination to avoid such existential crises is a neocolonial excuse to finally kill the Indian and save the man.
All the while, disenrolling Indian politicians exploit these tensions to fulfill their own agenda: Concentrate Tribal cash and resources to favor their political base and, in turn, sustain their personal wealth and political power. As they plot their scheme, those politicians pay lawyers and lobbyists to ascertain whether the federal government is watching—and willing to do anything to stop them.
From 1908 to 2009, the federal government did stand watch over disenrollment. The Department of the Interior adjudicated or reviewed disenrollment actions in fulfillment of the United States’ Treaty and other promises to protect Indigenous Americans, which constitute a “moral obligation of the highest responsibility and trust” according to the U.S. Supreme Court. Seminole Nation v. U.S. (1942).
In fact, until at least the late 1990s it was codified Bureau of Indian Affairs (BIA) policy to review disputed Tribal disenrollment determinations. BIA involvement continued for two decades after the Supreme Court’s insidious jurisdictional decision in Santa Clara Pueblo v. Martinez (1978).
It was not until the spring of 2009 that the Obama Administration abruptly looked away from disenrollment affairs, citing “a policy of Indian self-determination and self-government.” By that time, disenrollment was largely confined to California. But that casual federal policy decision, though well intentioned, proved disastrous.
Tribal politicians seized the moment. Disenrollment exploded into twenty states. Dozens of Indigenous communities were co-opted. Tribal courts were overthrown. Police violence erupted. Thousands of Tribal citizens were exiled.
All of Indian Country suffered a black eye.
By 2016, Interior corrected course. Amidst multiple federal Indian Country justice initiatives—the Tribal Law and Order Act most notably—the Obama Administration grew concerned about perceptions of Tribal justice systems as corrupt and unjust.
Interior took action, making examples out of the most egregious disenrollment offenders. The agency suspended the Nooksack Tribe’s federal funding recognition amidst unfathomable disorder surrounding the disenrollment of 306 Tribal citizens; and intervened in federal court when the entire 132-person Elem Pomo Colony population faced disenrollment and exile. The National Indian Gaming Commission shuttered lucrative gaming facilities at Nooksack and the Picayune Rancheria of Chukchansi Indians, where the rule of law had ceded to violence and anarchy.
Offering insight into the United States’ thinking at the time, immediate past Interior Assistant Secretary of Indian Affairs, Dean Kevin Washburn, warned that Tribes engaged in “unjust disenrollment” could face federal “diplomatic consequences, which could be fiscal in nature, equivalent to economic sanctions.”
Indian Country took note, and disenrollment waned. For almost three years, there was not a new disenrollment.
But that changed by late 2018. With the Trump Administration too preoccupied to stop Tribal corruption or reflect upon the real-life consequences of its actions or demurrals, Interior officials sanctioned two obviously illegal elections at Nooksack and proposed to cease BIA blood quantum determinations.
Tribal despots realized the Trustee’s priorities had shifted, and took full advantage.
Omaha Tribe of Nebraska politicians disenrolled fifteen citizens and placed hundreds more in harm’s way via clandestine blood quantum adjustments. A Modoc Tribe of Oklahoma conspirator terminated a three-generation family of fifteen after an elder questioned his “rent-a-tribe” schemes. The Rincon Band of Luiseno Indians disenrolled at least nine citizens based on a non-Indian anthropologist’s blood quantum “audit” findings and California Indian Legal Services’ advice. And Picayune autocrats jettisoned another sixty tribal citizens, just because they could.
Disenrollment returned and Indian Country’s black eye darkened—and it is only worsening.
(A forthcoming disenrollment documentary movie produced by California card-room owners, titled “Banished,” will further tarnish all Tribes’ reputations.)
History shows that the United States deters disenrollment through performed duty. “See no evil, hear no evil” is not acceptable federal policy. Nor is it lawful. The United States has a moral trust responsibility, according to the highest laws in the land, to protect against disenrollment. America’s “national honor has been committed” to guard Tribes and Tribal citizens alike. Heckman v. U.S. (1912).
Whether through exercising federal discretion to diffuse Tribal corruption, imposing government-to-government economic sanctions, amending the Indian Civil Rights Act, or deploying other deterrent measures, our Trustee must do something.
The United States must help stop disenrollment.
Gabriel S. Galanda is the Managing Lawyer at Galanda Broadman, PLLC, an Indigenous rights law firm. Gabe belongs to the Round Valley Indian Tribes, descending from the Nomlaki and Concow Peoples. The fifth annual #StopDisenrollment visual advocacy movement will happen on February 10, 2020.
