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The Anti-Disenrollment Chorus Sings: Part 2

In Part One, I profiled “the determined and diverse chorus of individuals, organizations, and even a few Native nations,” who in the spring of 2015 raised “substantive challenges to the egregious practice of dismembering otherwise legitimate citizens,” according to Professor David Wilkins.

By the summer, Indian Country Today Media Network columnist Steve Russell, Cherokee, a trial court judge in Texas and criminal justice professor, joined the chorus when he published a four-part series about disenrollment styled, “Disappearing Indians.”

Judge Russell dispelled several mistruths that operate to catalyze disenrollment, most notably that of Santa Clara v. Martinez (U.S. 1978), which did not say the Pueblo was correct to practice . . . discrimination. It said sovereign immunity prevented Julia Martinez from doing anything about it in court.” Nor did Santa Clara say anything whatsoever about disenrollment. Still, “[a]fter Santa Clara, disenrollment became a robust and unreviewable tool to settle political scores or to give expression to racism or to simply acquire a greater share of limited tribal resources.” Indeed, Santa Clara will go down as the worst federal Indian civil rights case, and one of the worst indigenous human rights cases, ever decided.

In reaction to Judge Russell’s series, Turtle Talk took a poll in August regarding the legacy and aftermath of Santa Clara, which Professor Matthew Fletcher described as “patently one of the two or three most important and perhaps controversial Supreme Court decisions affecting Indian nations and Indian people.” Consider a few of the more compelling questions and polling results:

· “Should tribal leaders be enjoined (prevented) from violating the Indian Civil Rights Act by federal court order?” 52% of respondents answered “Yes.”

· “Should tribal courts hold that the Indian Civil Rights Act allows Indian nations to be sued for civil rights violations?” 67% said “Yes.”

· “Is tribal civil rights or human rights law adequate to address claims of tribal government abuses?” 59% responded “No.”

Turtle Talk’s jury verdict went against disenrollment and disenrolling tribal electeds, signaling a sea change of opinion amongst Indian Country’s trusted advisors.

Then, in September, Sherman Alexie, Spokane/Coeur d’Alene, tweeted a shot heard round Indian Country:

Dear Indian tribes who disenroll members, you should be ashamed of your colonial and capitalistic bullshit.

Sherman’s righteous tweet went viral; it was retweeted hundreds of times, posted to Turtle Talk, and liked and shared throughout the Indian Facebook community, ultimately receiving over 100,000 views. Sherman said it all, in less than 140 characters.

Soon thereafter, Winona LaDuke, White Earth, expressed her concerned agreement that disenrollment causes classism and income inequality like what is happening in mainstream America. With a quick Facebook share, she joined the chorus by simply saying, “I agree,” meaning with the assertion made by a behavioral economist in Washington State, Dr. Daniel Underwood, that “what is happening to tribes [through disenrollment] mirrors the more general movement towards ever great degrees of concentration of wealth and power.”

I recently met Winona again, in Seattle on Indigenous Peoples Day. I thanked her for her simple yet profound Facebook post. With a furrowed brow, she conveyed her dismay about tribal self-termination qua disenrollment.

Last month, the American Association of Indian Physicians (AAIP) published a Resolution explaining the potential adverse health affects of disenrollment, and asking disenrolling tribes to reconsider their disenrollment decisions and consider restoring disenrolled Indians to tribal membership. According to the Resolution:

Disenrollment has the potential to negatively affect the health of tribal individuals and communities and the loss of cultural identity has been linked to depression and other mental health issues. Disenrollment may also lead to the loss of healthcare, housing, education, and employment opportunities, which are recognized social determinants of health.

AAIP published three research papers in support of its Resolution, one of which explains in very compelling fashion how disenrollment “perpetuates historical trauma by creating a loss of community and culture.”

In other words, Indian people are now committing the same sort of grave psychological harm upon their fellow Indians—including children and elders—that non-Indians have committed upon us for the last few hundred years. That inter-generational trauma is especially compounded when tribes disenroll the ancestors.

Then, in what in time could prove to be a watershed moment in disenrollment reform, Joseph Hamilton, Chairman of the Ramona Band of Cahuilla Indians, published “Tribal Leaders Must Talk About Disenrollment.”

Staking an inarguable position—and from the Southern California epicenter of mass tribal disenrollment, no less—Chairman Hamilton explained:

[D]isenrollment is not an innate right of tribal peoples; it was foisted upon tribes by the federal government in order to extinguish us. But disenrollment is a tribal right nonetheless. I suppose a tribe has the right to extinguish itself, like some did in the 1950s, if it so chooses.

The point is not that we can’t hold contradictory views about this issue, but instead that we better start talking about disenrollment and finding solutions before it’s too late. Unfortunately, nobody in tribal leader circles is willing to talk about it. Not at NCAI, not at NIGA, not among Southern California tribal leaders, not anywhere.

I fear that if we don’t talk and, more importantly, take some form of action, we run the real risk that Congress will exercise its “plenary” power over tribes and decide who is Indian—an idea almost too scary to consider.

Chairman Hamilton’s words were especially forceful given, as he observed, the utter scarcity of public comment regarding disenrollment by Indian Country’s elected leaders.

NCAI, NIGA and regional inter-tribal associations do sit deliberately quiet in the face of a disenrollment epidemic. It is that silence among tribal leaders—and the resulting void of peer-to-peer Indian shame—which emboldens tribal electeds to become dictators and, in turn, violently dismember their own people.

In 2015, Indian people (including the Spokane General Council), professionals and non-governmental organizations have powerfully raised their voices against disenrollment. They have refuted and rejected disenrollment on tribally traditional, political, legal, ethical, economic, medical and moral grounds.

Hopefully some day, sooner rather than later, and before it’s too late, Indian Country’s power elite will start preaching to that growing choir.

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.”