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The Anti-Disenrollment Chorus Sings, Part 1

Earlier this year, the longtime lone voice against disenrollment, Professor David Wilkins, Lumbee, wrote:

[W]hile the number of unjustified disenrollments continues to plague Indian Country, a small but determined and diverse chorus of individuals, organizations, and even a few Native nations (Spokane most recently), are raising substantive challenges to the egregious practice of dismembering otherwise legitimate citizens. It raises hope for those that have already been terminated and gives succor to those who face imminent dismemberment.

That anti-disenrollment chorus grows—and grows louder—with each passing day, especially given the silence of national elected tribal leadership in the face of widespread Indian self-termination.

In this two-part series I will profile those individuals, organizations and Native Nations who joined the chorus in 2015, and discuss each person or group’s powerful refrain against disenrollment.

In April, the National Native American Bar Association (NNABA) met in Phoenix and adopted Resolution #2015-06, “Supporting Equal Protection and Due Process For Any Divestment of the American Indigenous Right of Tribal Citizenship.” NNABA denounced “any divestment or restriction of the American indigenous right of tribal citizenship, without equal protection at law or due process of law or an effective remedy for the violation of such rights, and declared “that it is immoral and unethical for any lawyer to advocate for or contribute to” any disenrollment where such human rights protections are not afforded.

NNABA’s proclamation marked the first time that any national Indian organization had taken on disenrollment. Although Indian lawyers typically wait for Indian leaders to set national Indian policy, NNABA felt that tribal leadership could not be further waited on to address the disenrollment epidemic.

NNABA implemented Resolution #2015-06 two months later through its issuance of Formal Ethics Opinion No. 1, “Duties of Tribal Court Advocates to Ensure Due Process Afforded to All Individuals Targeted for Disenrollment.” Recognizing that any ethical void in Indian Country contributes significantly to the disenrollment of Indians without basic human rights protections, NNABA determined it “necessary and appropriate to address advocacy on disenrollment matters specifically” in order “to remind lawyers and any bar associations to which they belong that lawyers’ ethical obligations to their licensing jurisdictions do not stop at reservation boundaries.”

NNABA’s opinion challenged its own members—tribal lawyers who forsake their ethics and morals, if not their own Indianness, when helping terminate Indians.

Also in April a grassroots, Lakota social network of activists, Last Real Indians, sang rather bluntly:

Disenrollment is not our way as indigenous peoples.

We know of no Lakota word for “disenrollment.” We have no prayers, songs, dances or ceremonies about disenrollment. We know of no Sioux leaders who have ever disenrolled our relatives from the Great Sioux Nation. Disenrollment is a tool of colonialism and conquest. . . .

Real Indians don’t disenroll.

To Last Real Indians’ closing point, in June, the Spokane Tribe of Indians General Council passed Referendum 15-04, which provides: “Except in instances where a citizen transfers enrollment to another Tribe, no Spokane Tribal law shall operate to strip citizenship from any person who has previously been recognized to possess citizenship” pursuant to the Tribe’s Constitution.

As Professor Wilkins alluded, Spokane joined a few other Native Nations in constitutionally prohibiting Tribal Council disenrollment actions—much like the Fourteenth Amendment of the U.S. Constitution prevents any Congressional restriction on an American’s citizenship. United States v. Wong Kim Ark (U.S. 1898).

Those other tribes who have barred disenrollment include the Federated Indians of the Graton Rancheria in Northern California, and the Pasamaquoddy Tribe of the Pleasant Point Reservation in Maine. As Graton Chairman Greg Sarris sagely explained:

We saw the money coming . . . We saw the changes coming. We saw the challenges and we said, “Let’s do something that could prohibit disenrollments in our tribe.”

By “money” he means gaming per capita cash. Indeed, there is no more formidable of a force in disenrollment—or in modern tribal governance generally—than the almighty gaming per capita dollar.

Given that reality, Spokane, Graton and Passamaquoddy tribal leaders have taken visionary steps to prevent colonialism and commercialism from encroaching further upon their peoples’ tribalism. Each tribe refused to allow their communities to be torn apart at the seams by disenrollment strife.

It was an Indian Spring, of disenrollment dissidence. In Part Two, I will profile those who joined the anti-disenrollment chorus in remarkable ways throughout the summer and into the fall.

Gabriel “Gabe” Galanda is the managing partner of Galanda Broadman, PLLC, www.galandabroadman.com. He belongs to the Round Valley Indian Tribes. This year Gabe co-authored an Arizona Law Review article, “Curing the Disenrollment Epidemic: In Search of a Remedy.”