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Disenrollment Demands Serious Attention by All Sovereign Nations

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For most people, their sense of who they are—their identity—is at least partially defined from connection to others and to a community. When individuals are forced to sever those connections, the consequences can be devastating. Unfortunately, all too often in tribal disenrollment conflicts—like the one currently unfolding in northern Washington, where the Nooksack Indian Tribe is in the process of disenrolling 306 of its members—the fundamental issues revolve around individual and community identity. Handling these types of issues are of enormous consequence and it is the obligation of any true government to address them with the utmost seriousness.

Before I go any further, let me be very clear about something. The Nooksack Indian Tribe—like all Native Nations—are sovereign and, collectively, the Nooksack Indian Tribe possesses the inherent right of self-determination. The right to self-determination includes, among other things, the right of a Native Nation to citizenship. And the right to define citizenship includes both a right to include individuals as citizens of the nation as well as to exclude individuals from being citizens of the nation. This right is qualified, or at least should be, by due process protections. Unfortunately, many Native Nations spend their time focusing on citizenship selection criteria while ignoring the need for procedural protections.

The reality is that an enormous amount has been written about how Native Nations should make decisions about inclusion and exclusion with respect to their citizenry. You’ve undoubtedly read the debates regarding the use of blood quantum, lineal descent, or any other number of criteria for determining who merits inclusion as citizens of Native Nations. These debates focus almost exclusively on the substantive standards for exclusion, but rarely, if ever, do they involve discussion of the procedural standards that should be in place when dealing with identity.

But if you step back and think about what is happening when disenrollment occurs, you start to realize that disenrollment may be the ultimate coercive act a government can take against an individual. As such, disenrollment should have extremely high procedural safeguards and strong systems of governance to uphold those protections.

Modern governments exist to serve and enact the will of the people. When the will of the people targets an individual or small group of individuals, modern governments go to great lengths to ensure that the individuals’ rights are protected. This protection usually comes in the form of procedural safeguards. Furthermore, the more serious the government’s action is, the more elaborate these procedural safeguards tend to be. For instance, if a government wants to impose a monetary fine against an individual, the procedure is less stringent than if the government wants to take an individual’s land for public use. In most governmental systems, it is the removal of liberty, such as sending someone to jail, that requires the greatest procedural protections. In the U.S. system, revoking liberty requires, among other things, a jury trial and proof beyond a reasonable doubt that the individual committed a crime. It is indeed a very high procedural standard.

When Native Nations seek to disenroll their citizens, they are acting every bit as seriously as when a government imprisons someone. That is because like liberty, Native citizenship—and its effects on identity—are at the core of what it means to be Native. Indeed, the act of disenrollment impacts both the individual being disenrolled and the community-at-large. Most individuals—whether Native or non-Native—have a sense of self that is based, in part, on their connection to a community and that community’s reciprocal acceptance of them. Having that connection forcefully altered by a government can lead an individual to question who he/she is and can shatter all or part of an individual’s identity. Similarly, since the act of disenrollment can sever connections and relationships between individuals and the community, the community-at-large is affected. In fact, disenrollment of one or more individuals may cause other community members to question their place in the community and wonder if their citizenship—and by extension, part of their identity—is also likely to be subject to the whims of whomever the leaders are at the time. In other words, disenrollment can lead community members to wonder, “Are my family and I next?” In short, disenrollment tears at the very fabric of what it means to be a community.

Since disenrollment has such profound effects on the rights and identity of an individual as well as the cohesion and identity of the community, substantial procedural safeguards must be erected. Governments serious about their sovereignty – and who want to be taken seriously as sovereigns by their own citizens as well as other sovereigns – need to spend time determining what these safeguards should be, and what cultural, judicial, or other democratic systems need to be bolstered or established, in order to ensure the protection of citizens’ rights. And it is the people who must be allowed to help elected governmental leaders make those critical determinations and perform that hard work.

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One source of inspiration for such protections might be the United States, where the safeguards are nearly absolute and in favor of an individual citizen’s right to remain a citizen. In America, no citizen by birth may have their citizenship revoked involuntarily; rather, a U.S. citizen may only change that portion of their identity by voluntarily choosing to renounce their citizenship. The same safeguard essentially holds true for state citizenship as well, so long as an individual meets certain minimum requirements. For naturalized citizens, revocation can occur, but it is extremely rare and there are a substantial number of procedural hurdles that the U.S. government must overcome – starting with an under-oath affidavit of just cause to even initiate the process – before the revocation process can proceed.

It is beneficial for Native Nations like the Nooksack Indian Tribe to examine their own histories and apply their own time-tested core values when determining how to act in circumstances such as these. After all, the decision to exclude members not only has a powerful impact on the individuals affected, but also on the identity of those individuals who remain within the collective.

When compared with traditional Native norms and values, disenrollment appears to be unique to this point in history. Although banishment and mutual separation are the practices from Native culture that are most analogous to disenrollment, historically speaking, they are distinct in some very important ways. First, banishment was a practice relatively few Native Nations utilized in order to remove individuals who were disruptive and a danger to society. Banishment was only used when the safety of the collective was at issue and was never unilaterally relied upon to remove large numbers of individuals from the nation. Second, mutual separation was a practice that occurred when communities grew large enough that their members decided as a collective to split into two separate communities. This too, of course, was quite different from a forced mass removal of one’s own people. Both banishment and mutual separation were rare practices, but when they were used they were used to promote social cohesion and community functionality – that is, the practices were motivated by a collective effort to restore harmony to the group.

By contrast, disenrollment tends to have a very different set of motivations that are all too often related to factionalism, greed, racism, and resource distribution, The truth is that for the ancestors of most Native Nations, the idea of disenrollment would be countercultural and unthinkable because the social and community consequences it brings with it are devastating – not just to the individuals being disenrolled, but also to the body as a whole. To put it bluntly, disenrollment appears to be without Indigenous cultural precedent, which is unsurprising when one recalls that the idea of “tribal membership” was designed by the same United States government that sought to eliminate all Native peoples to begin with.

While many Native Nations are now doing pro-terminationist’s dirty work by revoking their own peoples’ citizenship – often through disenrollment procedures based on membership rolls and other artificial requirements originally created by the federal government – and, by extension, causing a cultural identity crisis, there are Native Nations that recognize the serious consequences of disenrollment and are looking for different options. For example, the Graton Rancheria government recently revised their constitution to put in place significant protections for its people. Although disenrollment is still legally possible under Graton Rancheria law, it can only occur in cases of fraud or mistake, and even then the proceedings must take place within a three-year statute of limitations. To further protect its citizenry, any changes to citizenship laws can only occur when with the approval of two-thirds the adult population. Examples like this one, though, are scarce across Indian Country, and need to be more prevalent.

In all, the incredible impacts that Native disenrollment exacts on both individuals and the community at large, especially as to Native identity, have largely gone overlooked in the raging disenrollment debate. While Native Nations have the right to define their own citizenty, the question of exclusion affects not only the citizenship of an individual, but also that individual’s connections and identity with a community as well as that community’s own ideals regarding who it is as a community. In doing so, the government’s decision to disenroll all too often weakens communal cohesion rather than strengthening it. Although the notion of disenrollment might be legally sustainable, it nonetheless demands strong procedural protections and governance systems as well as strategic deliberation about the long-term cultural and social consequences. It requires processes at least as stringent as those used when an individual’s liberty is at stake. The Nooksack Indian Tribe, similar to dozens of other Native Nations engaged in disenrollment, are failing to take seriously a critical function of what it means to be and act like a true sovereign: defining its citizenry. Those governments are failing to take the time necessary to put in place meaningful procedural safeguards against the unjust revocation of the citizenship of their own people. In other words, they seem to be ignoring the hard work all sovereigns must do – serving and protecting the rights of their entire citizenry.

Ryan Seelau is a senior researcher with the Native Nations Institute for Leadership, Management, and Policy at the University of Arizona as well as a licensed attorney. He has advanced law degrees from the Indigenous Peoples Law and Policy program at the University of Arizona.