Disenrollment IS a Federal Action

Disenrollment IS a Federal Action

As the tribal disenrollment epidemic only worsens, our trustee—the United States and its Department of Interior—continue to turn a deaf ear to desperate pleas for help from Indians who are facing disenrollment or have already been terminated.

Interior takes the position that it “does not get involved in individual tribal matters [of disenrollment] unless the agency’s participation is included in the tribal constitution.” That position results from a decision made by a few BIA career folks not even 10 years ago; an unwritten decision that was made without any agency rulemaking or tribal consultation whatsoever.

A few folks at BIA headquarters simply decided from behind closed doors that the agency should no longer get involved in disenrollment controversies. And the rest is modern history.

Even worse, Indian Country has accepted BIA officials’ self-serving position—indeed, nobody wants to be in the middle of an Indian-on-Indian disenrollment fight—as our own position. To be clear, disenrollment is not an exercise of tribal sovereignty or self-determination. Disenrollment is instead an exercise of federal removal, assimilation and termination policies, which tribes are now inflicting upon themselves.

To be equally clear, as a matter of federal law, the United States has, or had, been integrally involved in tribal disenrollment controversies for more than a century. What’s more, it is still federal law and policy that the Interior Secretary must be involved in any tribal disenrollment action. But Interior and BIA officials simply ignore those federal dictates.

For a forthcoming Arizona Law Review article, tentatively titled, “Curing the Tribal Disenrollment Epidemic: In Search of a Remedy,” Ryan Dreveskracht and I have researched the origins of disenrollment. As best we can tell, the seeds for disenrollment were planted during the Indian removal and treaty-making era in the early 1880s. The removal of Indians from federal Indian rolls began to flourish by the turn of the 20th century as means of tribal land dispossession and resource diminishment.

Consider the Osage Nation, which attempted to disenroll 244 persons from eleven Osage families for sake of lucrative, oil-moneyed headrights in 1907. Those roll removal efforts were ultimately defeated by the Interior Secretary, who rejected an Osage Allotment Commission’s findings that certain Osages had been fraudulently enrolled. The Secretary found that the tribe failed to establish its claim of fraud and the enrollment of all contested Osages was sustained, which decision was final and non-appealable.

“Disenrollment” was introduced under guise of Indian reorganization in the 1930s, and it has pervaded every era of federal Indian policy since. In a prior column, I discuss Interior’s role at Northern Ute in the 1950s, where the BIA helped accomplish disenrollment of nearly 500 “mixed bloods” from the tribe as “the first step in terminating both full-bloods and mixed-bloods from federal obligations.”

Likewise, in the 1980s, as illustrated by Holloman v. Watt (9th Cir. 1983), the BIA remained involved in tribal disenrollment. There, the BIA alleged “a discrepancy in the blood degree” of a Colville family and urged the tribe to disenroll them. After taking no action for years, the tribe eventually capitulated to BIA pressure and did so. Years later, though, the BIA did an about-face, determining that the family was in fact eligible for Colville membership. Colville then re-enrolled the family, at the BIA’s demand.

The Secretary’s role in disenrollment remained constant from the early 1900s through the early 2000s, including the decade that followed the U.S. Supreme Court’s landmark decision in Santa Clara Pueblo v. Martinez (U.S. 1978). That ruling is routinely cited by the United States to most commonly justify federal inaction in disenrollment matters.

In instances where the Secretary’s participation is included in tribal constitutions, Santa Clara is typically cited to sanction or even rubber-stamp tribal disenrollment decisions. For example, in reference to the Nooksack Tribe’s disenrollment “rules and regulations”—which the BIA recently approved as required by the Tribe’s Constitution—the agency cited Santa Clara as justification, explaining that a “tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence.”

The BIA misses the point of Santa Clara, perhaps purposefully. In Santa Clara, which concerned the denial of tribal membership, “the Supreme Court held that federal court enforcement of the [Indian Civil Rights Act of 1968 (ICRA)] is limited to habeas corpus jurisdiction on behalf of persons in tribal custody [and that] the ICRA cannot be directly enforced against Indian tribes because they are shielded from suit by sovereign immunity.” DeMent v. Oglala Sioux Tribal Court (8th Cir. 1989).

In other words, Santa Clara was decided on procedural/jurisdictional grounds under ICRA, without having anything to do with tribal disenrollment power.

More problematically, Interior and the BIA fail to appreciate that the tribal power to determine membership—or more traditionally, kinship or belonging—is distinctly different from the power to disenroll. The former is a matter of inherent tribal sovereignty. The latter is a matter of federal delegated plenary power that the Congress delegated to the Secretary of the Interior, and in turn, the Secretary has now delegated to tribal governments. This distinction is critical, and lost on most all of Indian Country due to the mistruths espoused on this topic by the federal government and others.

At minimum, federal Indian Affairs officials should stop disingenuously citing Santa Clara to support agency inaction in disenrollment.

That is especially so because even 10 years after Santa Clara, Interior continued to acknowledge that while tribes do possess the inherent authority to set tribal membership standards, tribal authority has always been subservient to the federal government through the authority Congress has delegated to the Interior Secretary.

In a memo written by Interior Assistant Solicitor Scott Keep in 1988, the department then “concluded that it has broad and possibly nonreviewable authority to disapprove or withhold approval… regarding membership…” That federal power includes the power to disapprove arbitrary and capricious or unlawful tribal disenrollment actions.

Indeed, the BIA’s Indian Affairs Manual explains: “When enrollees lose their membership they also lose their right to share in the distribution of tribal assets. Since the Secretary is responsible for distribution of trust assets to tribal members, disenrollment actions are subject to approval by the Secretary or his authorized representatives. Any person whose disenrollment has been approved by the Area Director acting under delegated authority may appeal the adverse decision as provided in 25 C.F.R. § 2.”

That’s right, the BIA’s own policies, compliance with which “is mandatory for Indian Affairs employees,” affirm the Secretary’s longstanding, formal role in tribal disenrollment matters. Yet instead of honoring those policies, or federal law, Interior honors a selfish decision made by a few BIA senior bureaucrats during the Bush Administration; sticking the department’s head in the sand while Indians are being terminated en masse, in ways that violate normative international human rights tenets.

To be sure, the Obama Administration has been the greatest presidential administration for Indians in America’s history. White House, Interior and BIA officials have caused or supported various “fixes” to what their predecessors and other branches of the Federal Government have ruined in Indian Country. Consider the Patchak and proposed Carcieri fixes, and the Oliphant fix via the Violence Against Women Act Reauthorization. Most recently, Interior officials have embarked upon fixing the Indian Child Welfare Act.

But the Obama Administration has failed to do anything to help fix today’s federally caused, tribal disenrollment crisis. Not only is it the federal government’s fiduciary obligation to all Indian peoples to do so, but it is the morally correct thing to do.

Disenrollment should not be left to blemish President Obama’s shining record of success in Indian Country. Federal action is required.

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