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Disenrollment Is a Disaster

Prof. David Wilkins is dismayed by language chosen by the Chief Judge of the Nooksack Tribal Court in a disenrollment decision.

His dismay is directed not at the holding of the case, which supported the sovereign authority of the Nooksack Nation to be stupid, but to the Chief Judge’s assertion that tribal enrollment is of less legal import than loss of US citizenship.

Nowhere in Prof. Wilkins’s critique of the opinion does he touch the essential argument the judge made: “While the impact on the disenrollee is serious and detrimental, it is not akin to becoming stateless.”

I propose a thought experiment. Suppose that the persons subject to disenrollment by the Nooksacks had US citizenship not by the right of birth set out in the Fourteenth Amendment, but rather a derivative citizenship based on the Indian Citizenship Act of 1924.

Suppose that upon disenrollment, US passports had to be surrendered, Social Security numbers cancelled. Would that not be at least a different kettle of fish, if not two seasons of The Deadliest Catch?

Disenrollees would be insulted and diminished. They may have lost affirmative action consideration if it existed anymore. They would have lost any benefits that flow though membership in the Nooksack Social Club—for so it will render itself by its own actions.

Disenrollees are not stateless persons in two senses. The first is that they still have passports and the consular rights those passports confer. They still have Social Security cards and access to the anemic social safety net those cards confer.

The second is that they are still citizens of the Nooksack Nation to the degree it still exists, as the Cherokee Nation does, as the Six Nations do, as the Navajo Nation does…I am not fully informed how many tribal nations survive, but I’m certain that it’s a substantially smaller number than can be found in 25 Code of Federal Regulations Part 83.

You don’t get your tribal citizenship from the US government.

Either something of your tribal identity, your peoplehood, survives as more than family folklore or it does not.

If it does, it’s an important political question to what degree your tribal citizenship conflicts with your US or Canadian or Mexican citizenship?

What would you say to Charles Curtis, a Kaw who served as Vice President of the United States? As far as that goes, what do you say to me when I sit as a Texas state judge under both the Stars and Stripes and the Lone Star?

If this is too esoteric, I’ll notice that the oath of office I took did not differ substantially from the oath I took upon enlistment in the US armed forces. In my day, more Indian young men took that oath than did not. Did we swear falsely?

Historians tell us that the modern nation-state was born in 1648, when power passed on paper from Divine Authority to various European warlords in the Peace of Westphalia. That’s a “truth” on the same level as democracy being born in 1215 (Magna Carta) or the Common Law beginning in 1066, when a thug called William the Bastard changed his historical identity to William the Conqueror at the battle of Hastings. No ordinary person in 1066 or 1215 or 1648 would have noticed much of anything, except for men under arms and the warlords who commanded them.

Right now, we live in a time when the nation-state is becoming less relevant to human organization. Labor and capital ignore national borders. Within nations, “sovereign” authority is split among localities because it’s more efficient and because democracy is now the ascendant ideology and people demand local control of local issues. National governments simply direct traffic.

The time when sovereignty meant fealty to an individual, the sovereign, is long gone. This is the age of bureaucracy and nation-states do not control all the bureaus.

So, did I swear falsely when I joined the military? No, for two reasons. One is that a threat to the US is a threat to the Cherokee Nation and the other is that the Cherokee Nation does not field an army.

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What about when I became a judge? What if the Cherokee Nation sued the state of Texas? I sat in lawsuits all the time where the state of Texas was a party, because my court was in the capital. A federal judge from Oklahoma is not disqualified in a case between Oklahoma and the United States. So why would I be unable to hear a lawsuit involving my tribal nation, any more than my state, county, city, school board, or any of the myriad taxing districts Texas has created to maintain the myth that Texans are not taxed?

Assuming that a federally recognized tribal government is the same as the traditional government of the tribal nation (a big assumption), the status of that government is a question of what the US calls “federalism”---what questions are apportioned to what level of authority? Who holds the power to decide?

What happens if the interests of the real tribal government conflict with the interests of the US government and the dispute cannot be resolved by negotiation or litigation?

I do not think going to war is a live option, but placing ourselves outside of US law and/or state law certainly is. This is what we call in the social change trade “direct action.” Gandhi did it in South Africa and India. Nelson Mandela did it in South Africa. Martin Luther King and César Chávez did it in the US. An issue that cannot be reached by direct action is an issue without much consequence to ordinary people.

There comes a time, if your fundamental interests are ignored, when a demand not worth killing for is at least worth dying for or, more likely, going to jail for.

I’ve had many, many conversations with Indians of many tribes about what they think of their federally recognized tribal governments. Very few trust tribal governments any more than they trust the feds, and nobody trusts the feds. To my knowledge, no tribal government has undertaken the training of tribal citizens in the discipline required to take direct action, to go to war with the United States.

If that’s the case, it seems to me that we will do what we are told if US interests conflict with tribal interests, and all a disenrollee has lost is a ride on whatever gravy train the tribal social club is conducting. The greedy clowns cannot take your tribal citizenship away because they didn’t give it to you.

You were born with it, and the significance of it is whatever you can make by courage and perseverance. Wow, that sounds brutal. It does. It puts us in exactly the same position our ancestors were in. I get my Cherokee citizenship from Dragging Canoe and John Ross and many others, because they had courage and perseverance. Everybody has a tribal history of heroic resistance to colonization if his or her tribal nation still exists today.

To the extent disenrollments are not driven by simple greed to cut a pie into fewer slices or, like the disenrollment of the Cherokee freedmen, a factional electoral advantage, tribal governments have an issue identical to that of conventional nation-states. Political geographer Marco Antonsich calls it “the crisis of the hyphen,” and it comes from the globalization of labor. The US has Mexican-Americans; the Europeans have Turkish-Germans and Algerian-French. Many of the hyphenated citizen situations are exacerbated by special immigration privileges between colonies and mother countries.

We have white Indians and black Indians, but color is a more fraught classification than the hyphen, because it feeds the myth of “race.”

Nation-states have made two classes of response to the crisis of the hyphen. The first is to rewrite national identity in purely political terms. This solution has been foisted upon US tribal nations by the line of Supreme Court authority that exempts Indians from aspects of equal protection law driven by the Fourteenth Amendment. Congress can, according to this line of authority, treat Indians differently from others without a “compelling governmental interest” to which the difference is “narrowly tailored” because the distinction is political rather than racial.

The second response to the rise of hyphenated citizens runs in the opposite direction. Some nation-states have tightened their immigration laws to demand tests of cultural competence or at least cultural compatibility. I have argued that, for instance, if the Cherokee Nation does not takes steps along these lines, Cherokee identity will be reduced to an accident of bureaucracy that will get no respect from the public, something that will eventually take away the respect in law. As all Indian tribes register exogamous marriages and blood quantum requirements work their magic, the Cherokee Nation is surfing a demographic wave that will get everybody wet eventually.

A tribal democracy is unlikely to stand for arranged marriages or for exclusion of grandchildren, and the latter is a ticket to extinction.

There is a sense in which this political problem is going to solve itself. Our standing in US law is being swiftly eroded, and the protections offered in international law are not robust.

The “real” tribal identity, peoplehood, carries with it a sense of solidarity and purpose that will enable defense by direct action, outside of law, and as long as the demands are reasonable public opinion in the US will support the Indian side. If tribal governments remain mired in corruption and self-seeking, we will lack the cohesion required for militant defense and we will end up doing as we are told.

We are not worthy of what our ancestors struggled to defend if the BIA denies our existence and we agree with them. As to the federally recognized tribal governments, if they have lost the ability to find their hind legs, then they can be opposed by direct action as well. The cohesion and purpose that direct action requires is perhaps the most important tribal heritage. Use it or lose it, but don’t whine.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.