They buy food, pay heating bills, make car payments, and open savings accounts. As a Dry Creek Rancheria Band of Pomo Indians leader explains, per capita monies have given historically impoverished Indian communities “cause to hope and dream and plan.” But systemically, “per caps” are causing harm to tribes as independent political entities.
Ho-Chunk, Inc., CEO Lance Morgan has indicted per capita dollars as a “new form of welfare [that] is just the latest in a cycle of dependency that Indian Country has been trying to break out of for the last 100 years.” Socioeconomic dilemmas aside, per capitas have become an indomitable force in tribal policy and governance, to the detriment of Indian political stability and self-governance.
The per capita system dictates tribal election results and causes recalls and referendums. It shapes tribal fiscal policy and directly impacts tribal budgeting. It causes tribal program reorganization and reductions in force. It defines modern Indian citizenship and sparks mass disenrollment, or what Professor David Wilkins refers to as the epidemic of Indian “dismemberment.” It starts civil wars within tribes, and between tribes.
Tribal per capita payments are a creature of the United States and its Indian termination policies. In 1907, Congress passed the Lacey Act so that tribal trust funds could be “apportioned and allotted” on a “pro rata” basis to any Indian “capable of managing his or her own affairs.” While Congress ended allotment in 1934, it superimposed Indian “membership” upon tribes at the same time.
By the mid-20th century, Congress reauthorized tribal cash apportionment to tribal members on a “per capita” basis as a mode of tribal termination. The convergence of federal Indian membership and per capita constructs—and resultant tribal disenrollment, community division and political unrest—have plagued Native America ever since.
Consider one of the first instances of tribal per capita cash distribution, and in turn mass disenrollment, at Northern Ute. In 1950, the Northern Utes were awarded $17.5 millionfrom the federal government in compensation for the loss of tribal lands. The monies were used to make a $1,000 per capita payment to Northern Ute members—which the Tribe made not at the will of the membership, but at the insistence of the United States.
Of course, in 1950, “the dominant federal policy stressed termination.” At the same time, tribal governments were just acclimating to the United States’ imposition of “membership” upon tribal communities, under the guise of Indian reorganization.
Almost immediately, Northern Ute members became “dependent upon unearned income derived from land claims judgments.” Over the next couple of years, per capita payments increased to roughly $11,000 per member. In turn, tribal factionalism commenced at Northern Ute, followed by mass disenrollment.
A faction of supposed “full-bloods” immediately sought to have another group, the “mixed-bloods,” disenrolled from Northern Ute. The BIA encouraged this action as “the first step in terminating both full-bloods and mixed-bloods from federal obligations.” In 1954, at the insistence of the “full-bloods,” Congress legislated so-called “full” blood quantum as the criteria for Northern Ute membership: “onehalf degree of Ute Indian blood and a total of Indian blood in excess of onehalf, excepting those who become mixedbloods by choice.” 25 U.S.C. 677a(b). Roughly 500 “mixed-bloods” were instantly disenrolled from Northern Ute.
Per capita payments increased and, in turn, membership criteria tightened further at Northern Ute under tribal law. Endless infighting and litigation ensued. Four decades later, a U.S. District Court agreed that the Tribe’s per capita-driven membership criteria was terminationist, by Congress’ design. In Chapoose v. Clark (C.D. Utah 1985), aff’d sub nom, Chapoose v. Hodel (10th Cir. 1987), a federal judge found that “Congress intended that the blood quantum requirements . . . be used only . . . to separate the fullbloods and mixedbloods so that the mixedbloods could be terminated.”
Indeed, higher per capitas for the “full-bloods,” and eventual termination of all Northern Utes, was the United States’ endgame. To this day, nearly 65 years since the Tribe’s inaugural per capita payment, membership issues pervade Northern Ute. In addition, and despite decades of per capita monies, 54 percent of Northern Ute families live in povertyand 40 percent of all adults on the Tribe’s reservation are out of the labor force.
Meanwhile, the Indian Gaming Regulatory Act of 1988 has made “per caps” a tribal household term. As Dr. Steven Cornell explains: “[B]efore the 1990s and the advent of casino gaming . . . [f]ew nations had the resources to issue large per capita payments. In recent years, however, as the discretionary revenues of many nations have risen—sometimes dramatically—the issue of per capita payments has gained new prominence.”
IGRA authorized the distribution of net gaming revenues to tribal members on a per capita basis, and capitalistically subjected those monies to federal income taxation. Although that watershed federal law was ostensibly passed to promote “tribal self-sufficiency, and strong tribal government” (25 U.S.C. 2701), IGRA’s per capita provisions—like the Lacey Act of 1907 and federal per capita statutes circa 1950—have caused the apportionment and allotment of tribal governmental cash assets.
IGRA included checks and balances on per capita distributions “to prevent political favoritism or corruption” according to Professor Robert Clinton. But these safeguards too frequently fail, with per capita payments often becoming the singular issue that determines the outcome of tribal elections. The most common ploy is to schedule the disbursement of per capita checks to coincide with tribal election voting. In too many ways, the commercialism associated with per capitas has replaced tribalism.
Certain tribes’ irresponsible use of net gaming revenues caused Senator John McCain to propose an amendment to IGRA in 2006 that would have required federal oversight of a “reasonable method of providing for the general welfare of the Indian tribe and the members of the Indian tribes.” While tribes were rightly outraged by Senator McCain’s proposed encroachment upon Indian sovereignty, tribes were also put on notice that federal decision-makers will act upon the improper use of tribal per capita dollars.
Money-driven membership disputes and civil rights violations by some tribes continue to provide tribal critics ample reason to abrogate the self-governance rights of all tribes. As attorney Jared Miller comments: “there is a real risk that Congress or the U.S. Supreme Court might one day make new law in the area of tribal citizenship.” Native America can ill afford to run any such risk.
Per capita payments are catalyzing the snowballing trend of mass Indian disenrollment—i.e. self-termination. As the Ninth Circuit Court of Appeals took occasion to remark: “membership disputes have been proliferating in recent years, largely driven by the advent of Indian gaming, the revenues from which are distributed among tribal members.” Alto v. Black (9th Cir. 2013). Despite such foreshadowing by federal lawmakers, membership issues remain taboo in national tribal leadership circles.
Tribal officials often use disenrollment to target “political foes or large swaths of politically weak or unpopular members.” Almost always, per capita dollars are the underlying motivation, as tribal officials make closed door promises to those members who are not on the chopping block that they will “narrow the pool of tribal members” in order to increase the amounts of per capita payments to everyone who remains. That pledge broadens tribal support and quells dissent regarding the disenrollment.
Additionally, tribal officials often deny per capita payments to members who are slated for disenrollment, but are not yet disenrolled, in an effort to deny them the resources needed to fight against their termination. This is usually in blatant violation of tribal revenue allocation plans, IGRA, and tribal and federal equal protection laws. They are emboldened to commit these injustices by the reality that there is very limited judicial relief available to those subject to disenrollment; by the current National Indian Gaming Commission’s ambivalence about enforcing IGRA against tribes; and by the rest of the Obama Administration’s deliberate indifference to tribal citizenship controversies.
In all, the modern system of per capita payments deeply impacts tribal polity and governance in ways that seem to be doing more harm than good—especially when it results in Indian disenrollment and leads to tribal self-termination. For example, the hoping, dreaming and planning once heralded by Dry Creek Pomo Indians recently made way for mass disenrollment after the Tribe’s casino experienced a downturn in net revenues and thus reduced per capita payments. Only time will tell if the Dry Creek Pomo go the tragic way of the Northern Utes—or even worse.
In the longer term, only time will tell if tribal per capita payments and mass disenrollment efforts will, by grand design, terminate Native America.
Gabriel S. Galanda is the Managing Partner of Galanda Broadman, PLLC, an American Indian-owned law firm dedicated to advancing and defending Indian rights.