tribal membership

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.

Another Pechanga Membership Challenge Dismissed

Matthew L.M. Fletcher

Here is the opinion in Liska v. Macarro (S.D. Cal.): DCT Order Dismissing Liska Complaint.

A quote:

On October 14, 2008, Petitioner, proceeding pro se, filed the original petition, captioned “Complaint [for] Writ of Habeas Corpus.” (Doc. No. 1.) Petitioner alleged he is a descendant of the Pechanga Band of Mission Indians (the “Tribe”), but not an enrolled member of the Tribe. The Tribe currently has in place a moratorium on enrolling new members. The petition named as respondents Tribe members Mark Macarro, Mark Calac, Mar Luker, John Magee, Andrew Masiiel, Donna Baron, and Butch Murphy. Petitioner alleged Respondents illegally banished Petitioner from the Tribe without a hearing or due process, in violation of the American Indian Civil Rights Act of 1968 (“ICRA”), 25 U.S.C. §§ 1301, 1302, and 1303. According to Petitioner, he is entitled to be recognized as a member of the Tribe, share in the Tribe’s trust proceeds, and enter the reservation to visit his father’s grave.

Here is the more developed case.

Book Announcement: Kirsty Gover’s “Tribal Constitutionalism”

Matthew L.M. Fletcher

Oxford University Press will publish Kirsty Gover’s “Tribal Constitutionalism: States, Tribes and the Governance of Membership” in December.

Here is the blurb:

Recognised 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. This book 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.

Recent Saginaw Chippewa Appellate Court Decisions on Tribal Membership

Matthew L.M. Fletcher

Interesting and important cases:

Ayling v Tribal Certifiers

Tappen v Tribal Certifiers

News Article on Saginaw Chippewa Membership Dispute in Tribal Court

Matthew L.M. Fletcher1 Comment

From the Mt. Pleasant Morning Sun, via Pechanga:

Mt. Pleasant attorney Paula Fisher says she is pleased with her victory in Saginaw Chippewa Tribal Appellate Court on Aug. 16.

The Tribe’s Court of Appeals reversed the decisions of past Tribal Councils, the Tribe’s Office of Administrative Hearings and the Tribe’s Community Court said Fisher.

“The Tribe had previously taken the position it would not honor its own Tribal blood quantum certifications,” said Fisher, attorney for Tappen and Ayling. “That resulted in Tribal applicants who were born to Tribal members who had at least one half degree Indian blood quantum, not being allowed to use their parents to prove their members (eligibility).

“The Tribe has taken the position for the last several years that one half of one half does not equal one quarter.”

Chief Judge Kevin K. Washburn, Associate Judges Robert Kittecon, and Dennis Peterson issued an opinion and an order that would allow Dennis Tappen, Angela Ayling and Skykur Graveratte “due process rights” with their applications for Tribal enrollment.

Continue reading →

Fletcher on “Race and American Indian Tribal Nationhood” — UPDATED

Matthew L.M. Fletcher

“Race and American Indian Tribal Nationhood” is available for download here. [The paper is there now, sorry.]

Here is the abstract:

Modern American Indian nations face a racial paradox. On one hand, the citizenry of Indian nations is almost exclusively based in race, ethnicity, and ancestry. Indian nations would not be “Indian” without this basis. But American constitutional principles dictate that laws based on racial, ethnic, or ancestral classifications are highly disfavored. For Indian nations, this means that Indian governments have virtually no authority to regulate the activities of the non-Indian citizens that live amongst Indian communities. This paper offers a long-term solution to this conundrum, a solution that requires Indian nations and American courts and policymakers to modernize understandings about American Indian tribal nationhood. American Indian law and policy forced Indian nations into a legal status akin to “domestic racial nations.” By tweaking Indian citizenship requirements, and recognizing the national character of modern Indian nations, modern Indian nations should more properly be understood as simply “domestic nations,” much like Monaco and The Vatican.

Constructive feedback welcome.

New Scholarship on Gaming and Tribal Membership

Matthew L.M. Fletcher

Suzianne Painter-Thorne has published “If You Build It, They Will Come: Preserving Tribal Sovereignty in the Face of Indian Casinos and the New Face of Tribal Membership” in the Lewis & Clark Law Review.

Here is the abstract:

This Article considers recent disputes over membership decisions made by American Indian tribal governments. Since Congress passed the Indian Gaming Regulatory Act in 1988, Indian casinos have flourished on some tribal reservations. Some argue that the new wealth brought by casinos has increased fights over membership as tribes seek to expel current members or refuse to admit new members. It is difficult to discern whether there are more disputes over tribal enrollment as a consequence of gaming or whether such disputes are now more public because gaming has brought tribes to the forefront of U.S. culture. What is clear is that enrollment disputes are receiving increased attention, resulting in calls for some change to address what many perceive as a fundamental unfairness in tribal decision making.

Aggrieved members’ attempts to resort to federal or state court are blocked due to a lack of federal subject matter jurisdiction, standing, and because of the tribes’ sovereign immunity. Activists and courts have sought to change this, seeking to curtail the tribes’ sovereign immunity, expand federal court jurisdiction to permit oversight, or otherwise impose U.S. law on tribal membership decisions. Scholars are divided, with some arguing for the abrogation of immunity or sovereignty, while others argue that the tribes’ decisions are sacrosanct. Still others argue over how the tribes should define membership–contending that it should be based on cultural identity, political participation, blood quantity, or even DNA.

This Article argues that the focus should instead be on solutions that come from within the tribes. For too long the tribes have suffered from the imposition of legal and cultural norms that do not reflect their identity or culture. Because a tribe’s right to define its membership lies at the heart of its sovereignty, the solution is more, not less, sovereignty for the tribes. To remedy the impasse, I propose that tribes create separate independent judicial bodies, or an intertribal appellate court that would provide independent review of tribal membership decisions.