All Native Americans should be deeply concerned about a recent federal court decision ordering the BIA to decide who can be a member of one California tribe and how the tribal government should be organized – all for the sake of protecting “potential” tribal members instead of the will of the tribe. Prior to the December 13 order by the D.C. District Court, in California Valley Miwok Tribe v. Jewell, No. 11-CV-00160 (D.D.C.), the BIA respected the sovereign right of each tribe to establish its own enrollment procedures and determine their form of government. This all changed when the court stated the BIA has a trust responsibility to non-tribal members seeking membership and ordered the BIA to consider a tribal government’s motivation in prior and future enrollment decisions. This decision is paternalism at its worst and flies in the face of everything it means to be a Sovereign Indian tribe.
The decision stems from a leadership dispute with the California Valley Miwok Tribe. In 1998, the five members of the Tribe organized as a general council to govern the tribe and established a constitution and membership roll for the tribe. The BIA recognized the tribe under this government in 1998. The BIA then recognized the five-member general council again in 2011 after over a decade of trying to intervene while the tribe resisted the BIA’s groundless efforts to impose its will on the tribe. Now dozens of non-tribal members along with one of the original five members of the tribe’s general council seek to change the tribe’s enrollment criteria and government structure. Under the recent court decision, the BIA will uphold the will of these non-tribal members over the majority of the tribe’s general council.
The court is ordering the BIA to impose the will of non-tribal members on the tribe by forcing the BIA to consider whether “potential” members should be entitled to membership. This should concern every member of the 566 federally recognized tribes in the United States because now the BIA is compelled to determine the legitimacy of each tribe’s enrollment decisions.
The natural next step, which demonstrates the absurdity of the D.C. court’s decision, is what criteria the BIA will use to decide whether “potential” members are entitled to the benefits of tribal membership. No matter what criteria the BIA decides to arbitrarily apply, tribes are left with a harsh reality that sounds more like 1814 than 2014 – the federal government taking it upon itself to decide what is in the best interest of Indian tribes.
But the consequences are not just limited to enrollment decisions. The court decision also requires the BIA to eliminate the entire tribal government if it finds that the government was not formed with the consensus of all “potential” members. So now not only does the federal government get to determine if “potential” tribal members are entitled to enrollment, but the federal government would also consider whether the tribal government structure is in the best interests of these “potential” members. The consequences of “potential” members determining the legitimacy of tribal governments calls into question all of the actions taken by all tribal governments no matter how long those governments have existed.
The court’s decision will have disastrous consequences far beyond California’s central valley and the small California Valley Miwok Tribe. As Native Americans, our sovereignty and right to establish the laws we live by is what make Indian tribes distinctive. We must not stand by while a federal court unravels decades of progress toward “self” determination and needlessly destroys our inalienable right to Sovereignty so carelessly in the name of “potential” tribal members. Therefore, I urge all tribes to become involved (through the filing of a brief with the appeals court or otherwise) and have your voice heard in this matter that will impact your internal governance in a disastrous way. If history has taught us anything, it is that each of us (Tribes) are the only ones that we can count on to look out for our tribe’s best interest. Hopefully it is not already too late.
Sherry Treppa is the chairperson for the Habematolel Pomo Of Upper Lake.