For most of the modern tribal self-determination era, American Indian nations have emphasized inclusion. Starting in the early 1970s, higher tribal membership numbers equated to higher federal self-determination dollars. As tribes otherwise redoubled their efforts to reverse the destruction caused by preceding federal Indian removal, assimilation, and relocation policies, tribes found strength in numbers through expanded membership. Once-terminated tribes that were restored over the last few decades were particularly aggressive about bulking up their membership rosters in order to rebuild everything that the United States destroyed in the 1950s. Because of the once normative nature of American indigenous kinship-based systems of inclusion, the Indian Nation rebuilding efforts were second nature.
Then, from 1978 to the turn of the 21st century, the U.S. Supreme Court handed down a litany of decisions that, taken together, decimated tribal governments’ jurisdiction over persons in their territories. The Supreme Court held that tribes lacked inherent authority to criminally prosecute non-Indians for crimes they committed on tribal lands in Oliphant v. Suquamish Tribe (U.S. 1978), and ruled that non-Indians are not subject to tribal civil authority except under limited circumstances in Montana v. U.S. (U.S. 1981). Ever since, Indian Country has relentlessly sought to claw back criminal and civil authority over all people who enter tribal territories. Through Congressional fixes like the Violence Against Women Act Reauthorization, and judicial fixes like U.S. v. Lara (U.S. 2004) and Water Wheel Camp Recreational Area, Inc. v. LaRance (9th Cir. 2011), Indian Country has succeeded in attempts to gradually restore tribal jurisdiction over all persons, specifically non-member-Indians and non-Indians, in tribal territories.
Meanwhile, mass tribal disenrollment reared its sinister head. Amidst billions of dollars of new Indian gaming wealth, American indigenous modes of kinship, sharing and inclusion were converted to colonialist modes of racialized difference, commercialism and exclusion. Although disenrollment fundamentally converts Indians to non-Indians, at least legally, offending tribes fail to appreciate that disenrollment also erodes the very sovereignty and territorial jurisdiction that Indian Country has fought so hard to restore for the last four decades. Offending tribes also fail to appreciate that just because an Indian is disenrolled it does not mean that person can categorically be excluded from tribal territories – as history proves, it is just not that easy to eradicate Indians.
Disenrollment of an Indian does not necessarily equate to that person’s exclusion from their territories. The federal Indian Civil Rights Act (ICRA), which also protects non-Indians, authorizes a U.S. District Court to issue a writ of habeas corpus “to test the legality of [a] detention by order of an Indian tribe.” 25 U.S.C. § 1303; Dodge v. Nakai (D. Ariz. 1969). In Poodry v. Tonawanda Band of Seneca Indians (2d Cir. 1996), the Second Circuit Court of Appeals ruled that the “existence of the orders of permanent banishment” are criminal, not civil sanctions, and thus “sufficient to satisfy the jurisdictional prerequisites for habeas corpus” review by a federal court. Courts in the Ninth Circuit have held likewise. See e.g.Sweet v. Hinzman (W.D. Wash. 2008); Quair v. Sisco (E.D. Cal. 2004). More specifically, permanent “exclusion” of a disenrollee from tribal lands can constitute “a sufficiently severe restraint on liberty to constitute detention and invoke federal habeas jurisdiction under ICRA.” Tavares v. Whitehouse (E.D. Cal. Mar. 21, 2014). In other words, even though a federal court might not review a person’s disenrollment from their tribe, it can still review the exclusion de novo and, in the process, apply the protections afforded by the federal Bill of Rights.
Nor does disenrollment necessarily amount to the loss of an Indian’s land or home. Due to federal Indian allotment efforts in the late 1800s and early 1900s, individual Indians own allotment land. As a result of federal Indian housing programs, individual Indians also own homes affixed to tribal trust lands. The U.S. Constitution and ICRA, and many tribal constitutions, each prevent the taking of an Indian’s property for public use without just compensation. 25 U.S.C. § 1302(8); Irving v. Hodel (U.S. 1987). And, a tribal or federally-aided taking of Indian-owned property is generally redressible in tribal and federal court, respectively.
Nor does disenrollment mean that a disenrolled Indian cannot inherit allotted lands. In 2008, a federal Indian probate judge refused to give full faith and credit to a tribal administrative decision to posthumously disenroll a deceased Indian. In re: Lorena Joan Butler, No. P-00001-7499-IP (U.S. Dept. Interior, OHA, Jan. 31, 2008) the probate judge ruled that since the decedent and all of her legal heirs were enrolled when she died, it mattered not that they were all subsequently disenrolled. Her disenrolled heirs were awarded interests in her Indian trust estate. In this way, Indian estate planning can help shield a person and her descendants from the effects of disenrollment. So even though a tribe might be able to sever an Indian’s membership connection with their people, that tribe may not ever be able to sever her sacred connection with her family lands. (For more about the despicable notion of “posthumous disenrollment,” see “Disenrolling the Dead.”)
Meanwhile, an offending tribe loses critical aspects of sovereign authority over not only the disenrolled Indian, but also over the tribe’s territories. Under Oliphant, the tribe cannot assert criminal jurisdiction over crimes that disenrolled members may commit on tribal land – including those “crimes” of private redress sought in the absence of any legal remedy for disenrollment. Under Montana, the consensual relationship with her tribe that was her membership had been severed, arguably rendering her generally beyond the tribe’s civil adjudicatory jurisdiction for actions she may take on reservation fee lands – perhaps in civil disobedience of her tribe’s vindictive termination of her tribal status. And under Atkinson Trading Company, Inc. v. Shirley (U.S. 2001), that tribe may also lose taxing power over her activities on such reservation lands.
So instead of “exercis[ing] a robust form of sovereignty over its territory and all people within its territory,” a tribe that excludes its own people from its jurisdiction vis-à-vis disenrollment becomes a “weak sovereign” under logic espoused through the New York Times by Professor Matthew Fletcher. That offending tribe becomes the antithesis of Indian self-determination, having succumbed to archaic federal ways of tribal termination and sovereignty diminishment. These are but some of the profound, unintended consequences of tribal disenrollment.
Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm dedicated to advancing and defending Indian rights. Gabe descends from Nomlaki and Concow Peoples of Northern California and is a citizen of the Round Valley Indian Tribes.