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Obama’s Disenrollment Legacy

For seven years and nine months, the Obama Administration aggressively took a hands-off approach to tribal disenrollment.

For seven years and nine months, the Obama Administration aggressively took a hands-off approach to tribal disenrollment, which in significant part allowed that self-annihilation to reach an epidemic level. For the last three months of President Obama’s tenure, however, the highest-ranking federal Indian affairs officials dramatically reversed course and helped deter the spread of disenrollment.

During President Obama’s first year in office the Trustee—the U.S. Department of the Interior—began to ignore disenrollment. From the late 1970s until 1988, Bureau of Indian Affairs (BIA) policy proclaimed that “disenrollment actions are subject to approval by the Secretary or his authorized representatives.” The BIA remained closely involved in disenrollment in the 1990s and early 2000s.

But in 2009 the BIA opted out of the disenrollment business. From behind closed doors and “[w]ithout any tribal consultation or administrative rulemaking,” the BIA Central Office in Washington, D.C. proclaimed a new disenrollment protocol: “The BIA adheres to a policy of Indian self-determination and self-government.” The U.S. District Court in Timbisha Shoshone Tribe v. Kennedy (E.D. Cal. 2009) construed that pronouncement to mean “the BIA will not interfere in the disenrollment issue.”

The BIA’s new hands-off disenrollment policy proved to be a disastrous federal over-correction for Indian country.

During the next seven years of the Obama Administration, several thousand Indians were terminated by their own relatives—upwards of 9,000 tribal members have now been disenrolled from 79 tribes in 20 states according to Professor David Wilkins.

Finally, in October 2016, Interior’s Principal Deputy Assistant Secretary for Indian Affairs Larry Roberts (Oneida Tribe of Wisconsin) said enough was enough, and a recent paper published by his predecessor, Professor Kevin Washburn (Chickasaw), reveals that both men and their senior staff were thinking hard about disenrollment as they witnessed its carnage throughout President Obama’s second term.

On October 17, 2016, Assistant Secretary Roberts intervened in the Nooksack disenrollment saga, as chronicled on Sunday by the New York Times. Because a six-person tribal council faction refused to hold an election for four council seats they occupy—as well as fired the Tribe’s Chief Judge, sued its Court of Appeals and formed a pretend Supreme Court—all to disenroll the Nooksack 306—Roberts wrote Chairman Bob Kelly that “Interior will only recognize those actions taken by the Council prior to March 24, 2016, when a quorum existed, and will not recognize any actions taken since that time.”

When the Nooksack holdover council proceeded to purportedly disenroll the 306 anyway, Roberts again wrote Kelly on November 14, 2016: “until a Council is seated through an election consistent with tribal law . . . we will not recognize any ‘referendum election’ . . . claiming to disenroll current tribal citizens or any other [disenrollment] action inconsistent with the plan language of the tribe’s laws.” In a remarkable reversal of course, Interior thereby interceded with regard to “the disenrollment issue.”

Then on December 13, 2016, Indian Health Service (IHS) Principal Deputy Director Mary Smith (Cherokee) informed Kelly that the “actions to disenroll these members by the Nooksack Tribal Council . . . were done in violation of the tribe’s own Constitution and bylaws.” In response to the holdover council faction’s denial of health care to the 306, Smith further explained that “even if the Nooksack Tribe disenrolls members . . . those individuals may still be eligible for health care services.”

Further, both Roberts and Smith threatened that unless the holdover council faction held the election and the 306 and other disenrollees were entitled to vote, the BIA and IHS, respectively, will rescind millions of dollars in self-determination contract funding and reassume federal services at Nooksack—by March 2017 in the case of the BIA.

Likewise, on December 9, 2016, HUD’s Office of Native American Programs denied Nooksack’s FY 2017 Indian Housing Program application and the nearly million dollars that went along with it. HUD did so in reaction to the holdover council faction’s efforts to evict Nooksack disenrollees from their lease-to-own HUD homes. (Margretty Rabang needed to pay off only $9,327 before she owned her home outright.) In these ways, IHS and HUD, too, got involved with “the disenrollment issue.”

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Meanwhile, on the Elem Indian Colony, where 132 tribal members who compromise one-hundred percent of Colony residents are being disenrolled by another rogue council faction, the United States also got re-involved with disenrollment. On January 7, 2017, the U.S. Department of Justice filed an amicus brief on behalf of the BIA, urging a California federal court to abstain from dismissing a habeas corpus action filed by 29 of the Elem disenrollees. The U.S. urged the court to instead stay the matter so the disenrollees could exhaust tribal political remedies before the Elem General Council.

The Obama Administration would have previously pointed to Santa Clara Pueblo v. Martinez (U.S. 1978) and its “policy of Indian self-determination and self-government” in order to ignore the gross miscarriage of justice at Nooksack and Elem. Instead, Interior interceded in both sagas, choosing the side of the disenrollees no less. Granted, both Nooksack and Elem involve complete disregard for the rule of law. Still, Interior realized the Trustee could no longer ignore disenrollment or its Indian casualties.

On January 17, 2017, Professor Washburn provided a unique window into Interior’s recent change of heart and mind. In describing the “particularly vexing problem” that is “the disenrollment crisis,” he concluded:

[F]or tribes engaging in disenrollment in what appears to be an unjust manner, perhaps the United States should recognize the tribal right to take such action, but perhaps the federal government should reserve the right to assert diplomatic consequences, which could be fiscal in nature, equivalent to international economic sanctions, or political in nature, such as loss of federal recognition.

That describes the United States’ exact approach at Nooksack during the last three months of the Obama Administration: Impose diplomatic consequences, fiscal in nature, equivalent to international economic sanctions. That also describes the Administration’s very recent approach at Elem: Recognize the Colony’s right to take disenrollment action (or not), with the the U.S. asserting diplomatic, political consequences in federal court.

Professor Washburn’s profound idea of federal sanctions against disenrolling tribes reflects an evolution of both his and Interior’s beliefs on the subject. In 2014, as Assistant Secretary for Indian Affairs, he suggested that federal disenrollment intercession would be “trampling on tribal sovereignty and self-governance.” Acknowledging disenrollment acts as “human rights violations,” he urged disenrollees to pursue redress in international human rights forums. He confessed: “it’s hard to know how the United States can be helpful.” Yet as his new paper reflects, Professor Washburn and a few other brave Indian officials like Larry Roberts and Mary Smith figured out how to help #StopDisenrollment.

Pivotally, the United States’ remarkable intercessions at Nooksack and Elem, as illuminated by Professor Washburn, will deter disenrollment. The next tribal politician who entertains terminating a swath of his relatives must now pause to think about potential nation-to-nation economic sanctions—i.e., lost federal self-governance funding.

That tribal politician must realize that a growing number of Indian law firms, if not also the Interior and Justice Departments, could oppose him; and potentially cause the dispute to reach the U.S. Supreme Court—and threaten all Indians’ existence. (Last Thursday, SCOTUS conferenced about a disenrollment cert. petition in Aguayo v. Jewell. The Court denied review on Monday.)

He must also reflect on the possible “loss of federal recognition” for his entire tribe, should he and his surrogates despotically carry out their mass disenrollment plot. He must think of even worse possibilities by way of the Republican Congress, which could already be poised to reinvigorate federal termination policy in union with President Trump, who once barbed to the Congress: “They don’t look like Indians to me.”

By and large President Obama got it wrong on disenrollment. But his Administration’s lasting legacy on that human rights issue may have been defined during his final days.

Gabriel “Gabe” Galanda is the managing partner of Galanda Broadman, PLLC, He belongs to the Round Valley Indian Tribes. Gabe and his firm have represented nearly 600 American Indians facing disenrollment since 2013.