Saginaw Chippewa Disenrollees Win Small Victory against Interior

Here are the materials in Cavazos v. Haaland (D.D.C.):

18-2 Saginaw Chippewa Motion to Intervene

21 Cavazos Motion for Summary Judgment

26 Saginaw Chippewa Cross Motion for Summary

29 Federal Cross Motion for Summary

34 Cavazos Reply

38 Saginaw Chippewa Reply

39 Federal Reply

40-1 Cavazos Proposed Surreply

48 DCT Order

An excerpt:

This administrative law case centers on a U.S. Department of the Interior’s (“Interior”) decision (“AS-IA Decision”), after an informal adjudication, to decline to intervene in tribal disenrollment proceedings by the Saginaw Chippewa Indian Tribe of Michigan (“Tribe”). Plaintiffs are former members of the Tribe who have since been disenrolled by Tribal leadership. Plaintiffs charge that a federal statute particular to the Tribe, the Judgment Funds Act, PL 99-346, 100 Stat. 674 (1986) (“JFA”), required Interior to intervene in and put a stop to Tribal disenrollment proceedings. In their only claim before the Court, Plaintiffs argue that Interior’s inaction was arbitrary and/or capricious within the meaning of the Administrative Procedures Act, 5 U.S.C. §§ 500 et seq. (“APA”). As a remedy, Plaintiffs seek not just a remand back to the agency, but an order from this Court mandating Interior’s intervention to reverse the Tribe’s disenrollment proceedings.
In support thereof, Plaintiffs focus primarily on statutory provisions in the JFA governing (1) antidiscrimination against tribal members enrolled after the JFA’s enactment and (2) Interior’s supervision of the JFA. Ultimately, the Court agrees with Interior that the plain meaning of the JFA: (1) does not  classify disenrollment as discrimination and (2) grants Interior broad discretion to intervene in Tribal disputes related to the JFA. However, the Court holds that Interior incorrectly read the JFA to bar  discrimination only against enrolled members of the Tribe. Because the JFA also bars the Tribe from discriminating against disenrolled members in access to benefits and services funded by the JFA, the Court shall remand the matter to Interior to reconsider whether it should exercise its discretionary authority to intervene in the alleged inequitable provision of such benefits and services. 

Prior post here.

New Scholarship Shows Tribes with Gaming Operations are 30% More Likely to Disenroll Members

Anna Malinovskaya has posted “Understanding the Native American Tribal ‘Disenrollment Epidemic’: An IV Approach” on SSRN.

Here is the abstract:

Recently, over 80 Native American tribes have banned or disenrolled members of their tribes or denied citizenship to eligible individuals. This phenomenon has received media attention nationwide, and even the term the “disenrollment epidemic” was coined. Many speculate that at least some of it is driven by political struggles over multi-million dollar revenues of tribal casinos, which are sometimes distributed in per capita payments to all tribal members. In this paper, we test whether gaming has been driving disenrollments, and since a tribe’s involvement in gaming might be endogenous, we employ an instrumental variable approach. In particular, we use machine learning to select an optimal subset of instruments for a Native American tribe operating a casino from the set of potential instruments all plausibly meeting the exclusion restriction and associated with the geographical characteristics of reservations, such as their proximity to an MSA, an interstate highway, or a border of a neighboring state with no brick and mortar casinos. We find that a tribe’s involvement in gaming leads to a large and statistically significant increase in the probability of the tribe experiencing a disenrollment episode.

An excerpt:

This paper sought to understand if tribes’ involvement in the gaming industry, particularly wealth from per capita distribution of gaming revenues made possible by this involvement, has been the primary factor driving disenrollments and other types of dismemberment episodes. Both gaming and per capita distributions of gaming revenues are likely to be endogenous. Although we did not find an instrument for per capita distributions, we identified a set of instruments for gaming, and used them to understand, albeit indirectly, whether gaming has been driving disenrollments (the direct approach would be instrumenting for per capita distributions rather than gaming). Although this approach has its limitations
(as discussed in the Empirical Strategy section, it represents, to the best of our knowledge, the first attempt to identify a causal link between gaming and dismemberment in Indian tribes. Additionally, the consistency of results across our OLS and IV estimates, as well as across several sub-samples, is encouraging.
This research could be strengthened by instrumenting for per capita distribution of gaming revenues directly, though finding an appropriate instrument might be challenging. It could also be strengthened by finding instruments that would pass the Weak Instruments test for the full sample (327 tribes) that is likely to produce less biased IV estimates, or by using a different quasi-experimental empirical approach that would overcome the limitations associated with IVs when the sample is relatively small.

Saginaw Chippewa Disenrollees Bring New Suit against Interior

Here is the complaint in Cavazos v. Bernhardt (D.D.C.):

1 Complaint

An earlier suit was dismissed for failure to exhaust.

Nooksack Update: Disenrollees File 9th Circuit Appeal; State Superior Court Further Stays Eviction

Plaintiffs filed a notice of appeal from the District Court’s dismissal of their civil RICO action to the Ninth Circuit Court of Appeals, in Rabang v. Kelly (Rabang II). Pending that appeal, the Whatcom County Superior Court further stayed a Nooksack Tribal Court housing eviction proceeding.

Here:

7-31-18 Defendant Chief Judge Raymond G Dodge Jr’s Notice of Decision

8-23-18 Declaration of Rachel Saimons in Support of Defendant Dodge’s Motion to Re-Note Motion to Dismiss

8-23-18 Defendant Chief Judge Raymond G Dodge Jr’s Motion to Re-Note Motion to Dismiss

8-23-18 Defendants’ Renewed Motion to Dismiss

8-31-18 Declaration of Gabriel Galanda In Support of Plaintiffs’ Response In Opposition to Defendants’ Renewed Motions to Dismiss

8-31-18 Plaintiffs’ Response In Opposition to Defendants’ Renewed Motions to Dismiss

9-10-18 Order Granting Stipulated Motion to Stay Proceedings Pending Decision by the Ninth Circuit Court of Appeals

168 8-24-18 Plaintiffs’ Notice of Appeal

Nooksack: Three New Disenrollment-Related Lawsuits

Doucette v. Zinke (W.D. Wash):

complaint

Belmont v. BIA Acting Northwest Regional Director (IBIA):
Tageant v. Smith (Wash. Sup. Ct.):

Julia Stinson on Disenrollment as Cruel and Unusual Punishment

Julia M. Stinson has posted “When Tribal Disenrollment Becomes Cruel and Unusual” on SSRN. The article is forthcoming in the Nebraska Law Review. Here is the abstract:

In the past two decades, Native American tribes have disenrolled—permanently removed from tribal citizenship—thousands of tribal members, mainly because of lineage concerns or for political reasons. In these instances, scholars generally decry disenrollment. But there is a growing trend to disenroll tribal citizens for criminal conduct, and scholars (and even tribal members themselves) assume this is proper. This paper argues that tribal disenrollment for criminal conduct violates the Indian Civil Rights Act’s prohibition on cruel and unusual punishment.

The Supreme Court held that denationalization as a result of criminal conduct is cruel and unusual punishment in violation of the Eighth Amendment. Congress applied that same prohibition to Native American tribes in the Indian Civil Rights Act. And traditionally, tribes, who had the inherent power to impose any sanction necessary, focused on restoring harmony rather than punishing offenders; permanent expulsion was almost never imposed. Tribes are nations, and tribal membership is a voluntary compact equivalent in all meaningful respects to United States citizenship—hence, tribes cannot disenroll members for criminal behavior. Yet Congress also severely limited tribes’ ability to punish criminal defendants by capping incarceration at one year, and crime in Indian country is a significant problem. To allow tribes to battle crime and yet protect against cruel and unusual punishment, Congress should remove the limit on incarceration and individual tribal members can decide whether they are willing to submit to their tribe’s inherent power—and greater sentences—or voluntarily renounce their tribal citizenship.