Native American Calling Program on Tribal Disenrollments TODAY

Here is a description (the NAC website is here):

Thursday, December 22, 2011– Disenrollment Dividing Tribes: 
The First Amendment of the U.S. Constitution guarantees American citizens the right to freedom of speech. Recently, seven members of a California tribe were banned from tribal lands for up to 10 years, allegedly for speaking out against the current tribal administration. Should a tribe be able to use its status as a sovereign nation to remove unwanted members from their tribal rolls, with no recourse? Does simply speaking out against your tribal leaders give them the right to kick you out of the tribe? Guests include former chairwoman Jessica Tavares (United Auburn Indian Community).

This will be my second time on the program (the first was about Carcieri).

Commentary on David Treuer NYTs Op/Ed on Indian Blood Quantum

Here is the op/ed. It’s a great one, and well worth reflection.

A note of commentary … from a lawyer. This is a bit of an odd opinion in that I’m not sure what the position is. Treuer never rejects blood quantum as a minimum qualification, though he does rightfully criticize it as a primary marker of tribal membership. He seems to be suggesting that tribal membership is much more than blood quantum, a point upon which we can both agree. He writes:

Indians themselves knew how artificial this category of tribal membership was, and could use it to their own advantage. Before my tribe, the Ojibwe, established the White Earth Reservation in Minnesota in 1867, Chief Bagone-giizhig lobbied to exclude mixed-bloods from the rolls — not because they weren’t Indians but because, most likely, they formed a competing trader class. Bagone-giizhig swore they would rob White Earth blind. That he was right is a bit beside the point — he probably wanted to rob it blind himself.

This is an outstanding point, and brings us back to why and how blood quantum can be used and abused, even by Indian tribes, such as those in California and elsewhere who are disenrolling members for what appears to be reasons based purely on greed (who knows, really?). In fact, any membership/citizenship criteria throughout history has used for bad purposes.

As for the point of the op/ed, Treuer suggests additional markers of what tribes could and should use for tribal membership criteria:

Who is and who isn’t an Indian is a complicated question, but there are many ways to answer it beyond genetics alone. Tribal enrollees could be required to possess some level of fluency in their native language or pass a basic civics test. On my reservation, no schoolchild is asked to read the treaties that shaped our community or required to know about the branches of tribal government or the role of courts and councils. Or tribal membership could be based, in part, on residency, on some period of naturalization inside the original treaty area (some tribes do consider this). Many nations require military service — tribes don’t have armies, but they could require a year of community service.

This is where I’m curious. So, does this replace blood quantum? Or does some blood quantum requirement remain? I’ve rather vaguely proposed a kind of hybrid (here and here), but one that still heavily prioritizes a minimum blood quantum but still allows for non-Indians that meet political criteria to enjoy significant membership benefits. Would Treuer agree that a person with no blood quantum, but who is fluent in Anishinaabemowin, participates in ceremonies, and has lived perhaps his or her whole life on the reservation, qualify for tribal membership? Probably not, and neither would I (absent the political elements I would require), but “why not” is a question for which we as Indians don’t have very good answers.

Regardless, what makes this a great opinion piece is this statement:

Other nations take these things into account, and in doing so they reinforce something we, with our fixation on blood, have forgotten: bending to a common purpose is more important than arising from a common place.

What exactly is the common purpose of an Indian nation? My belief is that the Great Lakes Anishinaabe tribes have arrived at a broad, common understanding for existing, albeit one that is very abstract. It’s more than greed (maybe because there’s only so much money) and it’s more than being “more Indian than thou.” My guess is that the tribes engaging in the ugly disenrollment practices have no common understanding of their purpose. That much seems clear (at least to me).

Treuer’s views are very important to me, because I see a disconnect in what tribal membership means. As a lawyer, I see tribal membership as largely political (that is, you can be a nonmember and still be an Indian). Treuer (and I hate to put words in his mouth) sees tribal membership as less political and more cultural (though with significant political aspects, see the civics test). What is often missing in virtually all discussions about tribal membership in any tribal community is whether one or the other should win out, and how they can be mixed.

Weird thing is, in both my tribe and I believe Treuer’s, it is politically impossible to change the membership criteria anyway.

On Tribal Disenrollments and “Tolerance”

In light of today’s NYTs article on tribal membership, we note the curious conclusion to the article, reprinted here:

Citing a 1978 Supreme Court decision written by Justice Thurgood Marshall, the Bureau of Indian Affairs says that tribal governments have sole authority to determine membership — unless a tribal constitution allows intervention by the government. But such provisions are rare.

And some federal officials say that is exactly how it has always been.

“The tribe has historically had the ability to remove people,” said Kevin Bearquiver, the bureau’s deputy director for the Pacific region. “Tolerance is a European thing brought to the country. We never tolerated things. We turned our back on people.”

We really have no idea of the full context of this statement, but it is, to say the least, curious. Some Indian tribes tolerated multiple sexual orientations, criminal “deviance”, religion, and intermarriage. Many American Indians have no tolerance for lactose and diabetes-inducing glucose.

Do Indian tribes not tolerate outsiders, or those relatives within our midst that disagree with us politically? Hmmm.

I have argued before, and argue again here, that Indian tribes can be intolerant. They have a “right” to do so under our current understanding of federal Indian law. Intolerant tribes are weak sovereigns. They’re about exclusion and typically endorse a narrow view of what sovereignty can mean for a tribe. In that regard, perhaps, tribes are intolerant.

But most tribes, and especially the tribes here in Michigan, are not intolerant. They cooperate with the local non-Indian communities, many of their employees and business partners are non-Indians, and they are good public citizens.

I’m pretty sure that either Indian people were not intolerant before the Europeans came but we will never really know for sure, just as I bet Bearquiver regrets making such a broad generalization (or curses the NYTs for quoting him out of context).

NYTs Article on California Tribal Disenrollments

Here.

Saginaw Chippewa Indian Tribe Changes Tribal Membership Criteria

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

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

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)

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

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

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