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Vote to Change Timbisha Constitution Cancelled

Timbisha Shoshone Tribe leadership dispute sees Secretarial Election that would have changed the tribe’s Constitution cancelled.

The Bureau of Indian Affairs in California has cancelled a vote on a proposed new Constitution for the Timbisha Shoshone Tribe that tribal leaders say would violate the existing Constitution and pave the way for individuals who are not eligible for tribal membership to vote, hold office and effectively take over the tribe.

In the latest turn in an ongoing leadership dispute, Timbisha Shoshone leaders at the tribe’s Death Valley reservation filed two administrative appeals in mid-October with the federal government to stop the Secretarial Election – a referendum vote overseen by the BIA – scheduled for November 4 that it had authorized on the proposed new constitution. They said that the process leading up to the vote would violate federal regulations and the vote itself would illegally revise the existing Constitution to create new membership eligibility criteria that would allow non-Timbisha individuals to become tribal members. The appeals also ask Interior to recognize a tribal government elected according to the tribes’ existing Constitution by eligible voting members.

The Indian Law Resource Center (ILRC) filed the appeals with the Interior Board of Appeals and the Bureau of Indian Affairs (BIA) regional office in California on October 11 on behalf of Timbisha Shoshone Tribal Chairman Joe Kennedy and council members Grace Goad, Erick Mason, Pauline Esteves and Madeleine Esteves – “the last lawfully elected Chairman. … [and] tribal council of the Timbisha Shoshone Tribe,” according to the center’s Executive Director Robert Coulter. Kennedy and his council are based in Death Valley, California, where the tribe’s 300-acre reservation is located.

Kennedy warned that every Native leader should take note of this case. “Because of unjustifiable BIA interference in the self-governance of the Timbisha Shoshone Tribe, a block of voters with no known connection to the tribe may soon control a federally recognized Indian tribe,” he said.

Kennedy is mired in a leadership dispute with George Gholson, who heads a faction of the Timbisha Shoshone Tribe based on a Paiute Shoshone reservation in Bishop, California. Gholson was recognized as chairman of the tribe in 2011 by former Interior Department Assistant Secretary for Indian Affairs Larry Echo Hawk. In July Gholson applied for the Secretarial Election for the new Constitution, which was revised under his instruction. He withdrew the application at the end of October after learning of the Kennedy council’s appeals and realizing that certain procedural requirements had not been met. “There’s a timeline the federal government has to follow and since there was a shutdown there was nobody there to process the paperwork,” Gholson told Indian Country Today Media Network. He said he has filed a new application for a Secretarial Elections, which usually takes place within 30 days from the time the BIA authorizes a new election.

The leadership dispute between Kennedy and Gholson can be tracked to 2008 when the tribe’s Enrollment Committee conducted a review of the membership rolls and found 74 members, including Gholson, who did not meet the eligibility requirements of the Timbisha Constitution. The 74 individuals were disenrolled according to the tribe’s procedures and did not appeal their disenrollments.

The Timbisha Shoshone Tribe was federally acknowledged in 1982 and adopted a Constitution in 1986. The Constitution’s membership criteria say members must be listed on the 1978 genealogy roll that was used to apply for federal acknowledgment, or be lineal descendants of anyone on the 1978 base roll and possess at least one fourth degree of Indian blood of which one-sixteenth degree must be Timbisha Shoshone blood, or they must be of Indian blood and adopted by the tribe.

In 2011, the Interior Department cut off funding to the elected Kennedy government and rejected the results of an election in which Kennedy and his council were elected. Echo Hawk then forced a special election to take place, putting Gholson in charge of it, according to a lawsuit the Kennedy council filed against the Interior Department officials. Echo Hawk allowed the disenrolled individuals to vote and to run for tribal office and then recognized Gholson and his council when they were voted in with the help of these disenrolled members, ousting the Kennedy government. “We don’t know why he did that,” Coulter said. But the consequences of Echo Hawk’s actions are known. “The BIA resumed funding for the tribe and its new BIA-created tribal government, providing funding, programs, and services for dozens of people it knew to be ineligible for membership in the tribe and ineligible to receive programs, benefits, and services intended for members,” Coulter said.

Gholson said his proposed new Constitution would simply include an amendment to the tribe’s 1986 election ordinance “that said that people who were listed on the 1936 census roll of Indians in and around Death Valley, California, were eligible to be members. The Constitution says you have to be on the 1978 genealogy roll. So the new Constitution took the amendment and just added it to the enrollment. So you no longer have an amendment – those people who were eligible before the new Constitution are the same people eligible after the new Constitution,” Gholson said.

“Absolutely untrue,” Kennedy said in an e-mail response. “As in most tribes, states, and countries with constitutions, a Timbisha ordinance cannot contradict the Timbisha Constitution. What Gholson is saying is that [the ordinance] did that by expanding the eligibility for membership. The criterion for membership since 1982 has always been membership on the 1978 Base Roll. That was the criteria recognized by the Interior Department in its decision to recognize the Timbisha Band as a tribe,” Kennedy said. “In 1986, the tribe adopted a Constitution that incorporated that requirement. In 1988, the Tribal Council amended the Enrollment Ordinance, not the Constitution, to make it clear that descent from the 1936 BIA Indian census would entitle one to membership if, and only if, one were also 1/16 Timbisha … The only basis for being Timbisha is the 1978 Base Roll.“

In late October, the San Francisco-based law firm Dentons filed a formal objection to the Secretarial Election Board on behalf of the Kennedy council saying that the proposed Constitution would enable around 86 people who do not meet the membership requirements to become members. And of the 101 individuals the BIA found eligible to vote in the referendum, 49 – nearly half – were non-members, Dentons wrote.

“In the end, quite paradoxically, this Secretarial election seeks to do something that no Secretarial election can legally do: harness the votes of the non-member voters to alter the very provision of the Constitution that precludes them from becoming members and from voting in Secretarial elections, and thereby bootstrap those non-member voters into the tribe,” Dentons wrote. Even more absurd, Dentons continued, the proposed new Constitution will facilitate the disenrollment of people who object to the new Constitution – people like Kennedy, his council and their families – “to complete, and purport to constitutionalize, the hijacking of the tribe by the non-member voters and their allies.”