Earlier this week, the United States Supreme Court denied hearingAguayo v. Jewell, a case regarding the disenrollment of dozens of tribal members by the Pala Band of Mission Indians in California, which has sparked a firestorm in Indian country over culture, identity, treaty rights and tribal sovereignty.
Filed in November 2016, the suit brought by plaintiff Tiffany Aguayo, along with dozens of other disenrolled tribal members, petitioned the court seeking to restore their citizenship. According to their petition, the Pala began stripping their rolls in 2011 after a six-member executive committee determined there was “insufficient evidence” that one of the tribe’s ancestors, Margarita Owlinguish Britten, who died in 1925, was full-blood. Some 162 of Britten’s descendants have been disenrolled.
Since then, the Pala have ejected approximately 18 percent of the tribe from its rolls.
The question presented to the Supreme Court was whether the Assistant Secretary, Department of Interior, Bureau of Indian Affair’s decision to uphold the tribe’s decision to strip petitioners of their tribal membership violates their due process rights and the Administrative Procedures Act.
Aguayo, along withAlto v. Jewell, a similar case involving the San Pasqual Band of Mission Indians, have been closely watched by tribes across the country. Both cases emerged from the Ninth Circuit, which covers Alaska, Arizona, Hawaii and parts of California, with more expected as other disenrolled tribal members continue to file their own litigation.
Although the denial came as no surprise, according to Gabe Galanda, a Seattle-based attorney involved in similar litigation involving a group known as the “Nooksack 306,” the fight over what his clients say are “capricious and unjust” disenrollments is not over.
“Indian country dodged a bullet,” Galanda told ICTMN. “No tribal politicians should ever again tempt SCOTUS to ask and answer the question, ‘Who's a tribal member?’ In other words, disenrollment must stop before SCOTUS or the Congress is allowed to ask and answer that existential question for Indian country. Rest assured we wouldn’t like their answer.”
“Illegitimate tribal disenrollment is currently an epidemic across Indian country that has caused severe hardship to thousands of disenfranchised Indians,” said Dr. James Diamond, director of the Indigenous Peoples Law and Policy Program at the University of Arizona. “The urgency of the government protecting Indians from arbitrary tribal disenrollment outweighs the tribe’s interest in restricting [citizenship].”
One of the thornier issues to emerge out of the Pala case also involves the issue of children who may fall under ICWA. In 2015, two children became the subject of an ICWA case in which the tribe had intervened and objected to their being adopted out of the tribe. During the course of their dependency proceedings, however, the children were disenrolled, though their mother was allowed to remain on the rolls. Subsequently, a California appeals court judge determined that the children could no longer be considered “Indian children” and were not granted the federal protections as enumerated under ICWA. Both children were subsequently adopted out of the tribe.
Legal experts say that the line of precedent for the current string of cases before the courts originates fromMartinez v. Santa Clara Pueblo, a 1978 case in which female members of the Santa Clara Pueblo of New Mexico sued under equal protection enumerated in theIndian Civil Rights Act after their children by non-Indians were denied enrollment in the tribe, which has a patriarchal enrollment system. In that case, and all subsequent cases, the Supreme Court upheld the tribe’s sovereign ability to determine its own citizenship.
“This is not about money, this is about what’s right,” Pala’s chairman Robert Smith told the Los Angeles Times in 2012 in reference to the disenrollments. Regarding the high court’s denial of Aguayo’s petition this week, the Pala Tribe did not respond to a request for comment by press time.