tribal membership

Saginaw Chippewa Indian Tribe Changes Tribal Membership Criteria

Matthew L.M. Fletcher3 Comments

Here is the news coverage. An excerpt:

A deeply divided Saginaw Chippewa Tribal Council has voted to change the requirements to become a member of the Tribe.

In a 6 to 5 vote, the council voted to tighten the source of the Indian blood quantum requirement for members.

The Tribe’s constitution, adopted in 1986, requires that members be descended from a person on one of three lists compiled in the 19th century, or from a Tribal base role compiled in 1982, plus be at least one-quarter “Indian blood.”

The constitution does not, however, define what is meant by Indian blood.

Early version of the Tribe’s enrollment ordinance also left it largely undefined, and it was interpreted to mean descent from most North American indigenous people. The council then tightened that to define it as descent from a member of any federally recognized Tribe.

The newest version, adopted at a special session of the Tribal Council Oct. 26, specifies that only “Saginaw Chippewa Indian Tribe of Michigan” blood counts toward the one-quarter Indian blood.

“Tribal Council finds that the current definition of ‘Indian blood’ provided in (the enrollment ordinance) is overly broad and inconsistent with the constitution,” said the resolution adopting the revised law. “The Tribal Council finds that blood inherited from the Saginaw Chippewa Indian Tribe of Michigan is the only blood directly relevant to membership under the constitution of the Saginaw Chippewa Indian Tribe.”

Under the old law, for example, a child born to a Saginaw Chippewa Tribal member with one-fourth Indian blood and a full-blooded member of the federally recognized Navajo Nation would qualify for membership. By most reckonings, that child would have five-eighths Indian blood quantum.

Under the new law, that child would not qualify as a Saginaw Chippewa.

Challenge to Colville Membership Decision Dismissed by Federal Court

Matthew L.M. Fletcher1 Comment

Here are the materials in Desautel v. Dupris (E.D. Wash.):

DCT Order Dismissing Desautel Complaint

Colville Motion to Dismiss

Desautel Response

Colville Reply

Federal Court Affirms BIA Decision Ordering Laytonville Rancheria to Re-Enroll 22 Former Members

Matthew L.M. Fletcher3 Comments

Here are the materials in Cahto Tribe of the Laytonville Rancheria v. Dutschke (E.D. Cal.):

Cahto Complaint

Cahto Motion for Summary J

BIA Cross-Motion for Summary J

DCT Order Affirming BIA Decision

NYTs “Room for Debate” — Tribal Rights vs. Racial Justice (Cherokee Freedmen Expulsion)

Matthew L.M. Fletcher4 Comments

The New York Times’ “Room for Debate” series has published a series of articles on the Cherokee Freedmen controversy.

Debaters

Saginaw Chippewa Disenrollment Effort Begins Anew

Matthew L.M. Fletcher

Here is the news article, via Pechanga. And here is an excerpt:

The “D” word has again surfaced on the Isabella Reservation: Disenrollment.

The Saginaw Chippewa Indian Tribe’s Office of Administrative Hearings last week conducted the first hearing in several years into the possibility of removing a current member from the rolls. No decision was reached.

The case involves an 87-year-old elder who lives in Pennsylvania. Anna Bell Atwood. She became a member of the Tribe in 1988 during the Tribe’s open enrollment period, a time when the Tribe reached out to Natives who might qualify to become members.

Since that time, Tribal membership has become extremely valuable. Members qualify for numerous benefits, including per-capita payments of several thousand dollars per month based on income from the Soaring Eagle Casino & Resort, free health care and other perks.

But a high birth rate has caused membership in the Tribe to grow rapidly. At the same time, the economic downtown has cut into the Tribe’s income.

Tribal attorney Shawn Frank admitted during the hearing that a change in the makeup of the Tribal Council had put the disenrollment issue back into the spotlight.

Federal Court Dismisses ICRA Habeas Action for Robinson Rancheria Disenrollees/Evictees

Matthew L.M. Fletcher

Here are the materials in Quitiquit v. Robinson Rancheria of Pomo Indians (N.D. Cal.):

DCT Order Dismissing Quitiquit Complaint

Quitiquit Motion for TRO

Robinson Rancheria Motion to Dismiss

Quitiquit Opposition

Robinson Rancheria Reply

Tenth Circuit Issues Important Decision re: ICWA and Cherokee Nation Temporary Citizenship

Matthew L.M. Fletcher3 Comments

Here are the materials in Nielson v. Ketchum:

CA10 opinion

Ketchum Appellant Brief

Nielson Appellee Brief

Cherokee Nation Appellee Brief

Ketchum Reply

The summary of the case from the opinion:

This case concerns the application of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963, which, among other things, imposes a period of ten days before a parent can consent to the termination of her parenting rights over an “Indian child.”  The day after giving birth to C.D.K., Petitioner-Appellee Britney Jane Little Dove Nielson appeared in state court in Utah to relinquish her parenting rights and consent to the adoption of her son by Respondents-Appellants Sunny and Joshua Ketchum.  The court determined that although Nielson’s mother was a registered member of the Cherokee Nation, Nielson was not, and consequently the court approved the adoption without applying the procedural safeguards of the ICWA.

Later, Nielson filed suit in federal district court, claiming that C.D.K. was an Indian child at the time of the adoption and hence the ICWA’s ten-day waiting period should have applied.  Even though she was not herself a member of the Cherokee Nation, Nielson pointed to a law passed by the Cherokee Nation establishing automatic temporary Cherokee citizenship for any newborn who is the direct descendant of a Cherokee listed on the Dawes Commission Rolls.  The district court agreed that this act established tribal citizenship for C.D.K., and it invalidated Nielson’s relinquishment of parental rights, leaving the matter of custody of C.D.K. for the Utah state courts.  We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse on the grounds that C.D.K. was not a member of the Cherokee Nation for ICWA purposes at the time of the adoption.

Now Available: “Tribal Constitutionalism” by Kirsty Gover

Matthew L.M. Fletcher

Here is the flyer: Tribal Constitutionalism – Flyer

From the website:

Description

Recognized tribes are increasingly prominent players in settler state governance, but in the wide-ranging debates about tribal self-governance, little has been said about tribal self-constitution. Who are the members of tribes, and how are they chosen? Tribes in Canada, Australia, New Zealand and the United States are now obliged to adopt written constitutions as a condition of recognition, and to specify the criteria used to select members. Tribal Constitutionalism presents findings from a comparative study of nearly eight hundred current and historic tribal constitutions, most of which are not in the public domain.

Kirsty Gover examines the strategies adopted by tribes and states to deal with the new legal distinction between indigenous people (defined by settler governments) and tribal members (defined by tribal governments). She highlights the important fact that the two categories are imperfectly aligned. Many indigenous persons are not tribal members, and some tribal members are not legally indigenous. Should legal indigenous status be limited to persons enrolled in recognized tribes? What is to be done about the large and growing proportion of indigenous peoples who are not enrolled in a tribe, and do not live near their tribal territories? This book approaches these complex questions head-on.

Using tribal membership criteria as a starting point, this book provides a critical analysis of current political and sociolegal theories of tribalism and indigeneity, and draws on legal doctrine, policy, demographic data and tribal practice to provide a comparative evaluation of tribal membership governance in the western settler states.

Federal Court Dismisses Membership Claims against Unkechauge Nation

Matthew L.M. Fletcher

Here is the opinion in Maynes v. Unkechauge Tribal Council (E.D. N.Y.):

Maynes v. Unkechauge Tribal Council

An excerpt:

Therefore, given that the Unkechaug Nation is an Indian Nation under federal common law, it enjoys sovereign immunity. Accordingly, the Court lacks subject matter jurisdiction to adjudicate the plaintiffs’ claims and the Amended Complaint is DISMISSED WITH PREJUDICE as against the Unkechaug Nation.

Ho-Chunk Tribal Court Addresses DNA testing for Tribal Enrollment Purposes

Matthew L.M. Fletcher1 Comment

We imagine the DNA issue will arise again and again in Indian nations all over.

Here is the opinion in Powless v. NCN Enrollment Committee (CV 10-15 Decision).

An excerpt:

The DNA test allowed into evidence by the Committee is hearsay as defined by the FEDERAL RULES OF EVIDENCE (hereinafter FED. R. EVID.) 801(c). It is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Id. A written assertion is considered a “statement.” FED. R. EVID. 801(a). Thus, the DNA test‟s assertion that Mr. Powless is not the petitioner‟s father is a “statement.” A “declarant” is a person who makes a statement. FED. R. EVID. 801(b). The “declarant” of the results of the DNA test is the Oklahoma State University Human Identity Laboratory (hereinafter OSU Laboratory). At the hearing, no one from the OSU laboratory testified. The DNA test results were offered to prove the truth of the matter asserted; specifically that Mr. Powless is not the father of the petitioner. Therefore, the DNA test results meet the definition of hearsay. Such hearsay is inadmissible. FED. R. EVID. 802. The DNA test does not fall under the business records hearsay exception. FED. R. EVID. 803(6) allows business records to be admitted “if witnesses testify that the records are integrated into a company’s records and relied upon in its day to day operations.” Matter of Ollag Constr. Equip. Corp., 665 F.2d 43, 46 (2d Cir. 1981). Although OSU laboratory may engage in DNA analyses on a daily basis, those analyses are not akin to the running of the day-to-day operations of the business. The necessary witnesses also
did not testify at the removal hearing.