Nooksack tribe re-starts disenrollment process for 306 members


By John Stark The Bellingham Herald

June 3, 2014

DEMING – The 306 people facing loss of Nooksack Indian Tribe membership are back in tribal court attempting to block the tribal council’s latest effort to oust them.

As recently as March 2014, it seemed as though the members of three threatened families -Rabang, Rapada and Narte-Gladstone – would get a reprieve from a tribal procedure known as disenrollment that began in early 2013. After a long and convoluted legal battle in Nooksack tribal courts, the Nooksack Court of Appeals ordered a halt to the disenrollment process until the tribal council could draw up an ordinance spelling out disenrollment procedures. Such an ordinance also would require approval from the U.S. Bureau of Indian Affairs, the appeals court ruled.

But in mid- May 2014, the tribal council began sending out new notices to some members of the affected families, scheduling July disenrollment hearings before the tribal council under the terms of a 2005 tribal membership ordinance that received BIA approval in 2006. Ironically, the 2005 ordinance bears the signature of former chairman Narz Cunanan, a member of the Rabang family who is among those who could lose tribal membership.

In a new lawsuit filed May 30, 2014, in tribal court, Seattle attorney Gabe Galanda argues that the tribal council’s new disenrollment strategy does not comply with language in the March appeals court ruling, since the BIA has not approved any procedures since that ruling was handed down.

The lawsuit states that a tribal attorney confirmed the tribal council’s plan to conduct the disenrollment process under the terms of the older ordinance.

Now, Tribal Court Chief Judge Raquel Montoya-Lewis is being asked to decide whether that approach is a legally valid way around the Appeals Court’s ruling. In past legal opinions, Montoya-Lewis has tended to accept tribal attorneys’ arguments in favor of the tribal council’s sweeping authority to determine who is entitled to tribal membership and its many benefits. That authority has a firm legal foundation thanks to a 1978 U.S. Supreme Court ruling involving a New Mexico tribe.

If Montoya-Lewis does decide to uphold the tribal council’s position, the threatened families could go back to the tribal Court of Appeals to give those judges the opportunity to weigh in on whether a disenrollment process under the 2005 ordinance is in violation of their March 2014 appeals ruling.

The disenrollment controversy began in early 2013 after Nooksack Tribal Council Chairman Bob Kelly and a majority of other council members agreed that members of those three families had been incorrectly enrolled in the 2,000-member tribe in the 1980s, and their enrollments should be revoked.

Since then, members of the affected families have mounted a vigorous legal and public relations effort to retain their Nooksack membership. That membership entitles them to a wide range of benefits, among them fishing rights, health care, access to tribal housing and small cash payments for Christmas and back-to-school expenses.

Those facing the loss of tribal membership have based their membership claim on their descent from Annie George, who died in 1949. Members of those three families have introduced evidence that Annie George was Nooksack, but those who want the three families out have noted that George’s name does not appear on a list of those who got original allotments of tribal land or on a 1942 tribal census, and those two criteria determine legal eligibility for membership.

Even before the disenrollment process began, Kelly and his council allies pushed two other members off the council on grounds that they had missed council meetings, but the two contended they were targeted because they were members of the challenged families. Cash Christmas and school supplies payments also have been denied to the family members, and many of them have lost their jobs in tribal government or in the tribe’s two casinos.

While Kelly has refused comment on the situation, some of his backers in the tribe’s rank-and-file have spoken out in the past to praise Kelly for his actions. As they see it, the three affected families were outsiders with tenuous membership claims who should never have been admitted to the tribe to get a share of scarce tribal resources.

In tribal elections in March 2014, Kelly was reelected, despite a vigorous campaign against him by members of the three families and their supporters. The full results sent a mixed message: Two candidates who opposed the disenrollment also were elected. But the result left Kelly and his supporters with a 5-2 majority on the council.

The February 2013 edition of the official tribal newsletter, Snee-Nee-Chum, reported that the tribe’s 2013 revenue would add up to about $39.5 million, with about 24 percent of it coming from the casinos and smaller tribal enterprises.

‘Nooksack 306’ Wards Off Disenrollment With Multiple Legal Actions


Gale Courey Toensing, Indian Country Today Media Network, 3/3/14

Two members of the “Nooksack 306” – Nooksack Indian Tribe citizens who are fighting disenrollment – are awaiting an appeals court ruling on a case involving their alleged unconstitutional removal from the tribal council.

Council members Michelle Roberts and Rudy St. Germaine, along with more than 270 of the members targeted for disenrollment, filed a motion in Nooksack Tribal Court of Appeals February 18 seeking an emergency review of a February 7 order by Nooksack Tribal Court Chief Judge Raquel Montoya-Lewis, denying an injunction to stop Council Chairman Robert Kelly and other defendants from removing Roberts and St. Germaine from the council and reinstate them to their elected positions. Montoya-Lewis said the council had the power to remove them and that the court did not have the power to deal with the political aspects of the events.

According to the court documents, Kelly called three emergency meetings over the Martin Luther King Jr. weekend, effectively blocked Roberts and St. Germaine from attending the meeting via teleconference and, at the last meeting, led the council in removing them from office for missing three meetings.

The motion to the Nooksack Tribal Court of Appeals asking for a review of Montoya-Lewis’s order is the latest action in a long series of legal moves that have taken place since February 2013, when the tribal council under Kelly’s direction passed Resolution 13-02: Initiating Involuntary Disenrollment for Certain Descendants of Annie James (George). The common thread among the 306 members facing disenrollment is their mixed Filipino and American Indian heritage. Moreno Peralta, spokesman for the families, told Indian Country Today Media Network that the families believe they are being dispossessed of their Nooksack identity because of their mixed Nooksack and Filipino ancestry.

RELATED: Nooksack Indian Tribe in Disenrollment Fight

Attorney Gabriel Galanda of the Seattle firm of Galanda Broadman is representing the Nooksack 306 and has challenged a number of Montoya-Lewis’s rulings in support of the tribal council before the Nooksack Tribal Court of Appeals. The appeals court ordered a halt to the disenrollment process while the legal issues are under review, ruling tribal membership is not tied to a 1942 federal census, as the Kelly Faction has maintained since starting to disenroll the Nooksack 306 last February. More than a dozen members of the Nooksack 306, including Roberts, say that since the disenrollment effort began they have been fired from jobs with the tribe and others have been denied tribal housing assistance, even though they have not yet been removed from tribal membership rolls.

Kelly did not respond to a request for comment.

In an open letter to Interior Secretary Sally Jewell and Assistant Secretary – Indian Affairs Kevin Washburn, posted on Indian Country Today Media Network February 25, Roberts implored the federal officials to intervene in the Nooksack disenrollment conflict. She cited the violence that erupted at the Cedarville Rancheria when former tribal council chair Cherie Lash Rhoades gunned down five people, killing four of them, and stabbed a sixth.

RELATED: Nooksack’s Michelle Roberts Submits Open Letter to Jewell & Washburn

RELATED: Cedarville Rancheria Shooter Killed Brother, Niece, Nephew: Police

Roberts cited a media report that described the Cedarville killings as “the latest, and most chilling, example of tribal violence over power struggles and disenrollments.”

“So we have worried about the dispute turning violent on our reservation. History teaches us that when democracy falters, when there is no due process, when free speech is stifled, people take matters into their own hands,” Roberts wrote.

However, according to the Associated Press, Rhoades was being evicted from her home, but not disenrolled from the tribe.

Roberts called disenrollment “a creature of the federal government.” It was foreign to Indian people until the 1930s, when the United States began ‘reorganizing’ tribes and the Interior Department began “foisting boilerplate constitutions on tribes” that include disenrollment provisions. “Our traditions do not… Disenrollment is therefore your business,” she told the federal officials.

Interior Department spokeswoman Nedra Darling said the department cannot comment on pending litigation.

Moreno Peralta, the Nooksack spokesman, said the Nooksack 306 group is prepared to take the disenrollment conflict into the international arena, but must first exhaust all available legal venues here.

“As clichéd as it sounds, we have not yet begun to fight. We still have two lawsuits pending before the Nooksack tribal court judge and three appeals before the Nooksack appeals court. We are hopeful that the Nooksack appellate judges will strike down the entire disenrollment,” Peralta said.

If that does not happen, the Nooksack 306 will move ahead with a pending federal court lawsuit against Interior officials regarding an allegedly unlawful federal disenrollment election that took place last summer. “That case could take us to the highest courts in the land,” Peralta said. The group is also considering another federal court lawsuit against the Kelly faction, alleging a violation of the Indian Gaming Regulatory Act for depriving the Nooksack 306 of Christmas per capita payments. “The Nooksack judge refused to hold the Kelly faction in contempt of her own order but a federal court judge might not be so kind to them given how egregiously they have violated federal gaming laws,” Peralta said. The Nooksack 306 is also waiting to see the results of a National Indian Gaming Commission investigation into the matter.

“If all of those domestic legal efforts fail, our lawyers are already poised to pursue our claims internationally for violation of various human rights laws,” Peralta said.




Disenrollment Leaves Natives ‘Culturally Homeless’

Don Ryan / Associated PressMia Prickett sits at a table with a collection of family photos and holds her Confederated Tribe of Grande Ronde enrollment card along with a recent notice of potential potential disenrollment from the tribe in Portland, Ore., on Thursday.
Don Ryan / Associated Press
Mia Prickett sits at a table with a collection of family photos and holds her Confederated Tribe of Grande Ronde enrollment card along with a recent notice of potential potential disenrollment from the tribe in Portland, Ore., on Thursday.

By GOSIA WOZNIACKA Associated Press

Mia Prickett’s ancestor was a leader of the Cascade Indians along the Columbia River and was one of the chiefs who signed an 1855 treaty that helped establish the Confederated Tribes of the Grand Ronde in Oregon.

But the Grand Ronde now wants to disenroll Prickett and 79 relatives, and possibly hundreds of other tribal members, because they no longer satisfy new enrollment requirements.

Prickett’s family is fighting the effort, part of what some experts have dubbed the “disenrollment epidemic” — a rising number of dramatic clashes over tribal belonging that are sweeping through more than a dozen states, from California to Michigan.

“In my entire life, I have always known I was an Indian. I have always known my family’s history, and I am so proud of that,” Prickett said. She said her ancestor chief Tumulth was unjustly accused of participating in a revolt and was executed by the U.S. Army — and hence didn’t make it onto the tribe’s roll, which is now a membership requirement.

The prospect of losing her membership is “gut-wrenching,” Prickett said.

“It’s like coming home one day and having the keys taken from you,” she said. “You’re culturally homeless.”

The enrollment battles come at a time when many tribes — long poverty-stricken and oppressed by government policies — are finally coming into their own, gaining wealth and building infrastructure with revenues from Indian casinos.

Critics of disenrollment say the rising tide of tribal expulsions is due to greed over increased gambling profits, along with political in-fighting and old family and personal feuds.

But at the core of the problem, tribes and experts agree, is a debate over identity — over who is “Indian enough” to be a tribal member.

“It ultimately comes down to the question of how we define what it means to be Native today,” said David Wilkins, a political science professor at the University of Minnesota and a member of North Carolina’s Lumbee Tribe. “As tribes who suffered genocidal policies, boarding school laws and now out-marriage try to recover their identity in the 20th century, some are more fractured, and they appear to lack the kind of common elements that lead to true cohesion.”

Wilkins, who has tracked the recent increase in disenrollment across the nation, says tribes have kicked out thousands of people.

Historically, ceremonies and prayers — not disenrollment — were used to resolve conflicts because tribes essentially are family-based, and “you don’t cast out your relatives,” Wilkins said. Banishment was used in rare, egregious situations to cast out tribal members who committed crimes such as murder or incest.

Most tribes have based their membership criteria on blood quantum or on descent from someone named on a tribe’s census rolls or treaty records — old documents that can be flawed.

There are 566 federally recognized tribes and determining membership has long been considered a hallmark of tribal sovereignty. A 1978 U.S. Supreme Court ruling reaffirmed that policy when it said the federal government should stay out of most tribal membership disputes.

Mass disenrollment battles started in the 1990s, just as Indian casinos were establishing a foothold. Since then, Indian gambling revenues have skyrocketed from $5.4 billion in 1995 to a record $27.9 billion in 2012, according to the National Indian Gaming Commission.

Tribes have used the money to build housing, schools and roads, and to fund tribal health care and scholarships. They also have distributed casino profits to individual tribal members.

Of the nearly 240 tribes that run more than 420 gambling establishments across 28 states, half distribute a regular per-capita payout to their members. The payout amounts vary from tribe to tribe. And membership reductions lead to increases in the payments — though tribes deny money is a factor in disenrollment and say they’re simply trying to strengthen the integrity of their membership.

Disputes over money come on top of other issues for tribes. American Indians have one of the highest rates of interracial marriage in the U.S. — leading some tribes in recent years to eliminate or reduce their blood quantum requirements. Also, many Native Americans don’t live on reservations, speak Native languages or “look” Indian, making others question their bloodline claims.

Across the nation, disenrollment has played out in dramatic, emotional ways that left communities reeling and cast-out members stripped of their payouts, health benefits, fishing rights, pensions and scholarships.

In Central California, the Picayune Rancheria of the Chukchansi Indians has disenrolled hundreds. Last year, the dispute over banishments became so heated that sheriff’s deputies were called to break up a violent skirmish between two tribal factions that left several people injured.

In Washington, after the Nooksack Tribal Council voted to disenroll 306 members citing documentation errors, those affected sued in tribal and federal courts. They say the tribe, which has two casinos but gives no member payouts, was racially motivated because the families being cast out are part Filipino. This week, the Nooksack Court of Appeals declined to stop the disenrollments.

And in Michigan, where Saginaw Chippewa membership grew once the tribe started giving out yearly per-capita casino payments that peaked at $100,000, a recent decline in gambling profits led to disenrollment battles targeting hundreds.

The Grand Ronde, which runs Oregon’s most profitable Indian gambling operation, also saw a membership boost after the casino was built in 1995, from about 3,400 members to more than 5,000 today. The tribe has since tightened membership requirements twice, and annual per-capita payments decreased from about $5,000 to just over $3,000.

Some members recently were cast out for being enrolled in two tribes, officials said, which is prohibited. But for Prickett’s relatives, who were tribal members before the casino was built, the reasons were unclear.

Prickett and most of her relatives do not live on the reservation. In fact, only about 10 percent of Grand Ronde members do. Rather, they live on ancestral lands. The tribe has even used the family’s ties to the river to fight another tribe’s casino there.

Grand Ronde spokeswoman Siobhan Taylor said the tribe’s membership pushed for an enrollment audit, with the goal of strengthening its “family tree.” She declined to say how many people were tabbed for disenrollment.

But Prickett’s family says it has been told that up to 1,000 could be cast out, and has filed an ethics complaint before the tribal court. They say the process has been devastating for a family active in tribal arts and events, and in teaching the language Chinuk Wawa.

“I have made a commitment to both our language and our tribe,” said Eric Bernardo, one of only seven Chinuk Wawa teachers who also faces disenrollment. “And no matter what some people in the tribe decide, I will continue to honor that commitment.”

Review of tribal rolls divides Grand Ronde members


Housing, insurance and more at stake in enrollment dispute

Confederate Tribes of the Grand Ronde exhibit. / TIMOTHY J. GONZALEZ / Statesman Journal file
Confederate Tribes of the Grand Ronde exhibit. / TIMOTHY J. GONZALEZ / Statesman Journal file

By Peter Wong

Dec 14, 2013 Statesman Journal

A dispute over enrollment has divided members of the Confederated Tribes of Grand Ronde, which operates Oregon’s largest tribal casino about 30 miles west of Salem.

Members who no longer are enrolled in the tribe will lose their shares of tribal income — currently $3,600 annually — plus access to tribal housing, health care and schools. The tribe has grown by almost 50 percent since it opened its casino nearly two decades ago, although growth has slowed.

Similar disputes are occurring elsewhere in the nation.

The review of tribal rolls, although long planned, has touched off acrimony among some tribal members. One has gone to tribal court in an effort to block it.

The tribal government said an audit of enrollment is part of the tribe’s 2010 strategic plan. Members recommended for removal from the tribal rolls have to go through four steps, including appeals to the tribal court and its court of appeals, before any decision is final.

A tribal spokeswoman said the current enrollment is about 5,200, up from 3,500 in 1995.

“There is a procedure in place for affected individuals to work through the process and they have been informed about it,” Siobhan Taylor, the spokeswoman, said in a statement.

“Our enrollment department is working to the very best of their ability to help all those involved. Our purpose is to help tribal members clarify their records and strengthen the Grand Ronde family tree for future generations.”

Taylor said there was a previous review of the roll, the origins of which date to 1984, the year after the tribe re-established federal recognition.

“Over the years our tribal membership, through constitutional amendments, has consistently pushed for tightening our membership requirements,” Taylor said in an earlier statement.

The tribal council moved a few months ago to drop 13 members from enrollment, but referred the cases of 17 others back to a committee reviewing the roll.

“There’s potential that people might not even be Native Americans, but yet we spend our money every day on these people until we choose to correct this roll,” Reyn Leno, the tribal chairman, was quoted as saying in the Smoke Signals community newspaper after the council action in August.


Read the full story here Statesman Journal


Descendants of treaty signer face disenrollment in Oregon

Marilyn Portwood, center, is shown with members of her family. All are among those facing disenrollment from the Confederated Tribes of the Grand Ronde. (Photo by Leah Gibson/Indian County Today Media Network).
Marilyn Portwood, center, is shown with members of her family. All are among those facing disenrollment from the Confederated Tribes of the Grand Ronde. (Photo by Leah Gibson/Indian County Today Media Network).

Source: Vince Devlin, Buffalo Post

As Grand Ronde Tribal Chairman Reyn Leno celebrated Restoration Day with a speech honoring tribal members who held onto their Indian identity even as the government tried to take it away, Mia Prickett said it brought tears to her eyes.

Prickett is one of 79 family members – whose ancestor Tumulth signed the 1855 Willamette Valley Treaty – facing disenrollment by the Oregon tribes, according to a story on Indian Country Today Media Network by Kevin Taylor.

“Hearing council talk about how difficult it was to go through termination and how termination took away their membership and took away their identity and tried to strip them of their heritage and took away their home. … Hearing them say that, I also felt threatened, that they’re doing this same thing to their membership right now and there was not even a bat of an eye as [Leno] read this prepared script about termination. There was no remorse in it. No acknowledgment that we are in the room and feeling that our days are numbered.”

The tribes were celebrating the 30th anniversary of President Ronald Reagan signing the Grand Ronde Restoration Act, which ended three decades of termination. In the years since, the tribe opened a casino and enrollment jumped from about 3,500 members to almost 6,000.

Taylor reports at ICTMN that having a treaty signer as an ancestor was once enough to qualify for tribal enrollment, but that has changed. Tumulth, Taylor reported, was executed by the U.S. Army in 1856 and before the tribe – which joined together 27 disparate tribal bands and communities – was formally created.

The issuance of per-capita payments has also created tensions, and appears to have created a schism between people who were enrolled before or after the casino. “Before the casino, we were enrolled and we were welcomed into the tribe. And now that the casino is there … well, I think greed is definitely a factor for some,” said Nicomi Levine, another member of the Tumulth descendants.

ICTMN says 15 members have been disenrolled this year, and hearings on Pickett’s family were slated to start as early as Monday.

Opnion: Fighting Disenrollment: The Nooksack 306

By Akilah Kinnison, Indian Country Today Media Network

Today, 306 members of the Nooksack Indian Tribe in northern Washington State are fighting mass disenrollment from their community. For the Nooksack 306, as they have come to be known, this struggle encompasses more than tribal citizenship – it is about their most fundamental human rights as indigenous peoples.

For some of the Nooksack 306, citizenship is literally a matter of life and death. As previously reported by Indian Country Today Media Network, Sonia Lomeli is a 74-year-old diabetic who lives on tribal land and depends on tribal medical care including transportation to kidney dialysis. Ms. Lomeli has stated, “I am afraid I will die if they disenroll me.” Mr. Terry St. Germain, a 48-year-old fisherman with eight children, worries he will not be able to feed his family if stripped of his tribal fishing and hunting rights.

The pending disenrollments have already had immediate effects. According to the Nooksack 306, some members have already been fired from their jobs or denied housing; their livelihoods are being destroyed. In a callous move a few weeks ago, just before the start of the new school year, the Tribal Council denied school supply stipends to all Nooksack children aged 3 to 19 who are proposed for disenrollment.

Pitted against their own tribe by a prevailing tribal council faction, the Nooksack 306 are battling to maintain their cultural identity as indigenous peoples – a right guaranteed under international human rights law. In their pursuit of disenrollment, the tribal government is violating the Nooksack 306’s rights to live in community, to due process, and to equal protection.

It is well-established that tribes have the right to determine their own citizenship. This was recognized by the U.S. Supreme Court in 1978 in Santa Clara Pueblo v. Martinez as well as in the United Nations Declaration on the Rights of Indigenous Peoples (“UN Declaration”), which the United States endorsed in 2010. Article 33 of the UN Declaration states, “[i]ndigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.”

The Nooksack Tribe’s undisputed right to determine its own citizenship is not, however, the only right at stake. The fundamental human rights of the Nooksack 306 also weigh heavily in the balance. Under Article 9 of the UN Declaration, “indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the tradition and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right” (emphasis added).

Similarly, Article 27 of the International Covenant on Civil and Political Rights (“ICCPR”), a binding treaty ratified by the United States in 1992, mandates that “[i]n those States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language” (emphasis added).

To illustrate, in Lovelace v. Canada, the UN Human Rights Committee, which monitors ICCPR implementation, found that Canada’s Indian Act violated Article 27 by terminating an indigenous woman’s tribal citizenship when she married a non-indigenous man. The Lovelace decision confirms that, under international law, indigenous individuals have a right to live in community with their fellow tribal people and that this right is critical to maintaining indigenous identity and culture.

Yet, rather than respecting the Nooksack 306’s international human rights, the Tribal Council has gone so far as to amend the Nooksack Constitution in an attempt to eliminate the 306’s indigenous right to citizenship. The Tribal Council has also passed several new tribal laws and amended Nooksack judicial, appellate, and election codes in ways that appear designed to strip the Nooksack 306 of their ability to have a voice before the tribal courts or polity. For instance, the ever-shifting rules of the game were recently amended to allow proposed disenrollees only 10 minutes by teleconference to make their case that they are rightfully Nooksack, and without the assistance of lawyers or family members.

Most significantly, the disenrollments are not proceeding “in accordance with the traditions and customs of the community” as required by UN Declaration Articles 33 and 9. The disenrollment process appears, according to the Nooksack 306, to violate tribal customary and constitutional law. Since early 2013, Nooksack Chairman Bob Kelly has been operating outside the bounds of the Nooksack Constitution, refusing to hold constitutionally mandated meetings of the Tribal Council or the entire Nooksack People at which disenrollment could be discussed. Such measures violate due process, a right guaranteed by Articles 7 and 14 of the ICCPR as well as other international law.

Further, the Nooksack 306 seem to have been targeted, at least in part, because they are of mixed Filipino-Nooksack ancestry, even though each is at least one-quarter indigenous as previously required under the Nooksack Constitution. The tribe has not been pursuing the mass disenrollments of persons of non-Filipino mixed Nooksack ancestry. The controlling Nooksack Council faction disputes that the disenrollments are racially motivated. However, an October 2000 LA Times article, entitled “Nooksacks Allege Filipino Family Has Conquered Tribe From the Inside” and the Council’s lawyers’ public reliance on the piece, illustrates that this rivalry, a long-running and significant feature of Nooksack politics, is at least partially motivated by racial animus. This animus is also evidenced by the fact that prior to a vote to amend the tribal constitution’s membership criteria this past summer, Chairman Kelly sent certain election materials only to non-Filipino Nooksack members.

Discriminatory disenrollment contravenes UN Declaration Article 9’s prohibition of discrimination “of any kind” in the exercise of the right to live in community and Article 2’s affirmation that indigenous “individuals . . . have the right to be free from any kind of discrimination.” It also violates the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”), ratified by the United States in 1994. ICERD Article 5, for instance, protects individuals’ exercise of political, civil, economic, and social rights as well as rights to land and culture under conditions of equality. In the inter-American system, the American Declaration on the Rights and Duties of Man, applicable to the U.S. by virtue of membership in the Organization of American States, protects the right to equality in Article II and the right to “take part in the cultural life of the community” in Article XIII.

The right to live in community is, in many ways, indigenous peoples’ most fundamental human right because it is critical to maintaining their identity and ways of life. It is this right that permits the Nooksack 306 to live on their traditional lands and to participate in the cultural and political life of their nation. Without the threshold right to citizenship, other protections for indigenous peoples’ human rights are rendered ineffective.

The Nooksack 306 could pursue claims against the United States for failing to protect these human rights, but to date they have chosen to contest their disenrollment primarily in tribal court, insisting that their own government respect internationally recognized human rights even if it is not directly bound by international instruments.

The Nooksack 306 have insisted, from the beginning, that theirs is a struggle to have their tribal government and court system recognize that, in their words, “We Belong.” Thus, the issue in this case is the tribal government’s responsibility to protect its citizens’ human rights by acknowledging that the right to determine citizenship is neither the only right at stake nor an unqualified right. In the interest of good governance, non-discrimination, and cultural survival, the right to determine citizenship should be exercised with an eye toward honoring and protecting indigenous individuals’ human rights to live in community within their nations. Hopefully that honor and protection will be afforded the Nooksack 306 once all is said and done.

Akilah Kinnison holds an LL.M. in Indigenous Peoples Law and Policy from the University of Arizona’s Indigenous Peoples Law and Policy Program. She currently works as an independent contractor and consultant in the fields of federal Indian law, international human rights, and indigenous peoples’ law.



Disenrollment Is Bad for the Bottom Line

Jared Miller, Indian Country Today Media Network

If you are following efforts by the Nooksack tribal government to purge 306 members from its rolls, you probably hold one of two views on the matter.

You may believe tribal disenrollment is patently unjust and requires some kind of federal or international intervention on behalf of the “Nooksack 306.” Or you may feel that disenrollment is solely a matter for the Nooksack Tribe to sort out, and non-tribal authorities should stay out of it.

Allow me to propose a third possibility.

Disenrollment is a business matter. That’s because tribal governments abandoning members en masse will harm their own bottom line by engendering negative media and investor perceptions. More critically, they threaten the bottom line of Indian businesses everywhere. As such, Indian people and tribal governments across the country have an interest in seeing that ugly disenrollment fights like the one on the Nooksack Reservation in Washington State do not happen. They should act to protect that interest.

Nooksack tribal officials endeavor to end forever the affiliation of 306 members. Disenrollment by the tribe could mean loss of benefits like housing, healthcare and education. Even more painful, according to some Nooksack members facing disenrollment, termination of tribal membership means a heart-rending loss of formal contact with their community and their culture.

As expected, the Nooksack 306 are fighting hard in courts and elsewhere to maintain tribal connections, and to secure rights to all the tangibles and intangibles that emanate from their identities as tribal people. Lawsuits are pending in tribal court and tribal appellate court, as well as federal court.

The battle is a public one. Local reporters have been on the story for some time. On August 25, the Seattle Times waded into the fray with a piece detailing the saga. Even more recently, Al-Jazeera introduced its growing audience to the story. Suddenly, what was essentially a family fight has become a very public airing of Nooksack dirty laundry.

Reporters have focused on a couple of angles. Some highlight accusations that greed, corruption, and racism aimed at tribal members with Filipino ancestry are driving disenrollment efforts. Others report that Nooksack officials may have ignored their own laws by failing to provide due process throughout the disenrollment process. All the coverage paints an unflattering picture.

Similar stories are trending across Indian country. According to Stephen L. Pevar’s book, The Rights of Indians and Tribes, “thousands of tribal members have been disenrolled from their tribes, usually from those with profitable casinos whose remaining members would then receive a larger share of the profits.” Another noted Native American professor has called the disenrollment era a “sort of tribal civil war.”

So what can be done?

Predictions about the disenrollment trend are bleak. For example, University of Minnesota Professor David E. Wilkins, in a June 4, 2013 column for Indian Country Today Media Network, predicted that “native disenrollments will continue unabated” until either Congress or the U.S. Supreme Court intervene. His column suggests potential avenues of short-term redress for individuals facing disenrollment, but Professor Wilkins seems to assert that only federal authorities can provide comprehensive relief.

Let’s hope he’s wrong. For one thing, enrollment (or disenrollment) is a matter for tribes to decide. It is rarely advisable for outsiders to intervene in tribal infighting, and federal law is clear that non-Indian courts generally have no jurisdiction in matters of tribal membership (save for habeas corpus or a collateral federal question). Inviting Congress or the Roberts Court to intervene should send shivers up your spine.

Moreover, there is reason for optimism. Tribal governments have shown a stunning talent for pragmatism and savvy in matters of tribal business and finance. Walk into most any Indian-owned casino and you’ll experience a level of professionalism and service that scoffers never predicted, to cite just one example.

And let’s be clear: Disenrollment is a business issue. Ugly battles like the one at Nooksack have potential to deeply affect tribes’ bottom lines. That’s partly because non-Indians may view such controversies as indicators of greed and corruption. Investors may also conclude that partnering with a tribal government engaged in abandoning its own citizens is not worth the risk to investment.

And non-Indians viewing disenrollment through the lens of old stereotypes may extrapolate those notions to tribes generally. It shouldn’t happen, but it does.

There is a price attached to everything. Tribes mulling disenrollment need to focus on the cost to business. They must consider that disenrollment can spook investors, and the negative financial impacts can be long term, widespread and devastating. (Just Google “Nooksack disenrollment” to see what potential business partners will read when they research the Nooksack Tribe.) Native American leaders should pause to understand that a tribe going to war with itself drives down the stock price of all of Indian country.

In addition to financial interests, there is a real risk that Congress or the U.S. Supreme Court might one day make new law in the area of tribal citizenship. We just saw the Court diminish Indian child welfare law and tribal cultural identity in the “Baby Veronica” case. Now imagine how the Roberts Court might undermine tribal citizenship if given the chance.

For these reasons, tribal governments and tribal officials should employ the forces of regional and national intertribal politics to pressure officials pursuing disenrollment. It is time to pick up the phone, or the pen, or write an email. Get creative. Too much is at stake to remain silent.

Pressure on the Nooksack government should begin now. Journalists and potential Indian-country investors are closely watching this fight, and they will take note as it unfolds. It would go a long way to shape media and investor perceptions of tribal governments if the Nooksack government could wake up to the big picture and resolve its problems without throwing hundreds of members off the rolls.

But no matter where you stand on the Nooksack fight, putting an end to disenrollment is critical for the bottom line in Indian country.

Jared Miller is a lawyer practicing tribal law and federal Indian law in Washington State.



Tribal Membership Revocations: Dialing For Dollars?

Article By:

Dennis J. Whittlesey

Patrick Sullivan

Dickinson Wright PLLC

Sunday, July 7, 2013

Over the past several years, there have been a series of publicized tribal enrollment revocations of enrolled members – including former tribal leaders – and their entire families. While this phenomenon was extremely rare in the past, it is becoming increasingly and disturbingly common.

Many in Indian Country openly trace this activity from the date on which the Indian Gaming Regulatory Act became law in 1988 and tribes too often spending large amounts of their casino revenues in per capita payments to tribal members. In some cases, as tribal populations grew, revenue distributions were accordingly reduced to continue payments to all members. In other cases, the economic downturn that dates back to 2007-08 led to reduced casino revenues and, in turn, reduced individual payments. Still, many have linked dollar reductions in per capita payments to the increase in expelling members.

These facts are well reported and discussed below in some detail. The casual reader will ask how this could be possible, or even legal. Various legal challenges to disenrollments have been unsuccessful, whether they directly challenge the tribes themselves or seek to compel the Bureau of Indian Affairs (“BIA”) to intervene.

Tribal Challenges usually are made in the face of tribal sovereign immunity and are routinely dismissed. While the federal Indian Civil Rights Act of 1968 ostensibly offers legal protections to the victims of enrollment revocations, the reality is that the law is toothless and is not the vehicle through which individual Indians have gained much of anything in the way of rights protection.

BIA Challenges are the alternative, and they involve asking the BIA to intervene to protect the rights of those being banished from their tribal membership, but that agency officially takes the position that the issue of tribal membership is purely a tribal matter and not something in which the federal government will – or even should – become involved.

It is worth noting that the BIA has interceded in enrollment disputes in some unusual cases, the most noteworthy of which is probably that of the Buena Vista Rancheria of Me-Wuk Indians of Amador County, California. The Buena Vista is a recognized tribe that until a few years ago consisted of one adult named Donnamarie Potts. For reasons that are not altogether clear, the BIA examined Ms. Potts’s status as a descendant to the single Indian family formerly residing on the Buena Vista Rancheria and concluded that she has no ancestral tie to the land and, accordingly, was not a lawful member of the recognized Rancheria tribe. Indeed, the BIA concluded that a second adult named Rhonda Morningstar Pope was the sole adult descendant of the resident Indian family and thus the only person entitled to lawful tribal membership in the Rancheria tribe. As a result of that BIA administrative action, Potts was removed and Pope’s family has subsequently constituted the entire tribal membership.

It is also worth noting that the Rancheria tribe has been attempting to develop a casino on the former Rancheria lands for some 10 years but without success as of this date.

Possible Connections Between Tribal Casino Revenues and Membership Revocations

While there are a number of tribes that have disenrolled members, these writers are not aware of any non-gaming tribes that have done so. Disenrollments are reality, but an established connection between reduced casino revenue distributions and disenrollments is somewhat hypothetical. Nonetheless, examining the facts is enlightening.

For the purposes of this article, it is useful to examine the three tribes currently embroiled in “enrollment reductions” that have received the greatest attention. They are (1) the Pala Band of Mission Indians of California, (2) the Picayune Rancheria of Chukchansi Indians of California, and (3) the Nooksack Tribe of Washington. They all have operated tribal casinos for a number of years. They all have been making per capita payments to tribal members. They all have disenrolled hundreds of members over the past several years. And they all apparently began disenrolling members shortly after experiencing downturns in casino cash flow that finance the members’ distributions.

The question is whether there is a cause-and-effect relationship between revenue declines and revocations of membership. The known facts speak for themselves, as does the high level of acrimony now infecting each tribe. However, in each case, the tribes are relying on conclusions as to enrollment entitlement that the BIA has the expertise and experience to determine, but declines to do so. The professional historians and genealogists at the Department of the Interior could resolve the disputes with finality, just as they did at the Buena Vista Rancheria. Thus far, they have elected to do nothing, leaving tribes in chaos and disenrolled members in distress.

Pala Band of Mission Indians

The Pala Indian Reservation is in Southern California, and it houses the Pala Casino which opened in 2001. The casino has been immensely successful, to the point that each tribal member currently receives about $150,000 in per capita payments annually from gaming revenues, as well as housing subsidies, health care, and educational benefits. When the casino’s revenues dropped in 2012, the Tribe’s per capita payments dropped by $500 per month, and the membership grew disenchanted with the decline in each member’s income. The drop in revenue resulted in financial pressure on members who relied on the payments, with the result that a long-simmering membership dispute flared into open hostility and ultimately a massive disenrollment revoking the membership of one-sixth of the Tribe’s population.

The Tribe’s membership rules require at least 1/16 Pala ancestry. Such “blood quantum” membership rules necessarily lead to an evershrinking tribal membership as members frequently marry outside the tribe. The dispute centered on a single woman named Margarita Britten, who is an ancestor of all of the disenrolled members. The Pala Executive Committee determined on its own that Britten’s father was white and not Pala, meaning that all members tracing their Pala ancestry solely to Britten as a great-great-grandparent went from 1/16 to 1/32 Pala blood and no longer qualified for membership. With that decision, more than 160 Pala members were disenrolled, an action that cut off per capita payments, as well as access to health care and all other tribal benefits. Tensions continue to run high on the reservation, with the disenrolled claiming the decision was made solely to prop up per capita payments, while members not affected respond that the disenrollment was an overdue resolution of a preexisting problem.

As for appeals, the Pala leadership took care of that by terminating what might have been a venue for the ousted members to seek judicial relief. In California, tribes may voluntarily settle disputes in the Intertribal Court of Southern California, a tribal “circuit court” providing a neutral forum for appeals of tribal decisions. The Pala Executive Committee voted to withdraw from that court before enacting the disenrollments, so the decision was never subject to review in that court.

The Pala enrollment case was closed before it even was ripe for hearing in that court.

Picayune Rancheria of Chukchansi Indians

In Northern California’s Madera County, the Chukchansi Indians operate Chukchansi Gold Resort and Casino, a popular and profitable operation conveniently located on a major gateway route to Yosemite National Park. While the Chukchansi per capita payments are small, they are supplemented by tribal payments covering utility and food bills, as well as academic tuition.

Chukchansi has reportedly disenrolled at least 400 members in the past five years, reducing the total membership to less than 1,000. The acrimony over the financial situation has grown so toxic that three separate factions are struggling for control of the tribe after a disputed election and continuing disenrollments.

Last year, then Tribal Council Chairman Reggie Lewis and his supporters voted to disenroll dozens of tribe members. Subsequently, Lewis lost his reelection to Morris Reid in December 2012, but he contested the results on the basis that Reid was ineligible to run. Later that same month, in a chaotic tribal council meeting, Lewis refused to seat the new members, announced that he would remain Chairman until a new election was held, and changed the locks on the tribal government offices. In February, a “tribal referendum” elected Council member Nancy Ayala as Chair and removed Lewis from the Council. Supporters of Reid broke into the tribal offices and refused to leave. Lewis’s supporters responded by cutting power to the building and throwing a smoldering log and bear spray inside to forcibly eject them. The Madera County Sheriff observed the activity but did not act, citing a lack of jurisdiction. On the following day, the scene erupted into a violent melee, prompting the Sheriff to intervene along with more than 100 officers from various law enforcement agencies.

Since then, the Tribe has remained in turmoil. In March, the casino’s bank froze the Tribe’s gaming revenue funds due to an inability to determine rightful control over the account, and in the process halted bond payments and put the Tribe in danger of default on its $300 million obligation to lenders. In May, the BIA rejected grant proposals filed by Reid on the basis that he was not a rightful representative of the Chukchansi Tribal Council. An April tribal referendum reinstated Lewis and removed Ayala. However, in June, the BIA administratively recognized Ayala as Chairperson and Lewis as Vice Chairman, although the two continued to wage their very public dispute. Ayala sought an injunction in federal court to cut off Lewis’s access to the bank account and force the bank to continue to pay bondholders, but the federal judge did not intervene, citing a lack of jurisdiction over the matter. It remains to be seen how the painful dispute will end.

In the latest development, a Madera County Judge cited a specific tribal waiver of sovereign immunity and ordered the County Sheriff to enter the Chukchansi casino and physically remove cash to pay a former casino manager owed $725,000 under a settlement of a suit resulting from his termination before his contract expired. Ayala’s faction has vowed to fight the “till tap,” and no per capita payments are currently being distributed.

Nooksack Indian Tribe

In Washington State, the 2,000-member Nooksack Indian Tribe is near the Canadian border, almost 100 miles north of Seattle. In February, six of the eight members of the Tribal Council, including the Chairman, voted to commence disenrollment proceedings against 306 Nooksack members, including the two tribal council members who did not vote in favor of the action.

The Nooksack disenrollees are descendants of a woman named Annie George. Tribal membership rules require that members either (1) trace ancestry to those appearing on a 1942 tribal census, or those who received allotments of tribal land, or (2) prove that they possess 1/4 Indian blood and any degree of Nooksack ancestry. George’s name did not appear on either list, and her descendants must go before the Tribal Council and present evidence of their claim. The disenrollees appealed the Tribal Council’s decision to the Nooksack Tribal Court, asking for an injunction to the disenrollment, but the Chief Judge denied the injunction citing the Tribe’s sovereign immunity from suit and deferring to the Tribal Council’s broad authority over membership matters.

Shortly after voting to disenroll the 306 members, the Council voted to initiate an election to amend the Nooksack Constitution to “close a loophole” and remove the second path to Nooksack membership. This change clearly would further obstruct the disenrollees’ claims. After the BIA approved the election, the two disenrolled Tribal Council members sought to enjoin the election in federal court, but the Judge declined to stop the election citing the lack of “applicable law” making it unlawful for the Nooksack Tribe to define its membership by race or ancestry. The Constitutional amendment went to a vote of the entire Nooksack membership, the outcome of which has not been announced as of this date.

© Copyright 2013 Dickinson Wright PLLC


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