Tribal Disenrollment: Self Decimation or Self Determination? by Professer David Wilkins

In 2006,  Professor David Wilkins published this essay on tribal disenrollment and banishment.  Since casino gaming, tribes have been disenrolling members at an alarming rate. We have links to stories on our sidebar.  Here's that essay:



By David Wilkins / University of Minnesota
Story Published: Aug 25, 2006
Story Updated: Sep 10,2008


Banishment and disenrollment in Indian country 

Tribal nations and their governing bodies, like all human communities, are in a constant state of flux.
They generate on their own and absorb from the outside a bewildering and seemingly increasing
array of issues that create for each First Nation, no matter their population size, opportunities to
evolve and mature or to regress and decay.

Issues include the exercise and enforcement of vital treaty rights, the complicated dynamics of
intergovernmental relations, profound environmental concerns and the always uneven ground of
land claims and sacred site battles. These are but a few of the multitude of topics that warrant
constant tribal vigilance. And, of course, each of these issues requires enormous outlays of time,
energy and resources.

As critical and complicated as these topics are, they pale in comparison to what is arguably the most
important question that has confronted tribal nations from their emergence accounts to the present
time: What does it mean to be Dine, Anishinaabe, Yakama, Lumbee, Tohono O'odham,
Narragansett, Pechanga, or Chukchansi? What, in other words, are the defining characteristics that
make an indigenous nation just that indigenous and a nation? And what is required of each
individual in those nations to be considered a bona fide participant, citizen or, for lack of a better
term, member of a given First Nation?



This set of intimately related questions of what it means to be an indigenous person in a particular
tribal nation has been crucial for every generation of all tribal nations from the moment they came
into existence, as every generation has the inherent free will to self-identify as whatever they choose
to be.

Historically, our lands, our languages, our spiritual beliefs and activities, and our kinship systems
provided the sacred boundaries and frameworks necessary to enable each First Nation and the
individuals and clans constituting those nations, to generally rest assured in their collective and
individual identities and to not have any questions about who they were.
Vine Deloria Jr. once succinctly noted as much when he stated that "the gut question has to do with
the meaning of the tribe. Should it continue to be a quasi-political entity? Or it could become
primarily an economic structure. Or it could become, once again, a religious community. The future,
perhaps the immediate future, will tell." In other words, at their core, tribal nations were and should
become again sacred bodies of related kinfolk. This is the essence of what it means to be a tribal
citizen within a First Nation.

That is not to say, however, that tribal nations were closed communities. Far from it. We have long
engaged in adoptions of other Native and non-Native individuals and, in some cases, entire peoples.
We intermarried with other clans, races and ethnic groups. In addition, we occasionally faced
situations, at times, where some disgruntled souls would voluntarily opt to abandon tribal relations.

On even rarer occasions an individual might commit a grievous offense (e.g., premeditated murder)
for which they might be killed or banished (disenrollment is a legal term that does not appear until
the 1930s), if all other attempts to resolve the conflict failed. But the available evidence and the oral
traditions of tribes suggests that given the kinship structure of most tribal nations that were always
focused on mediation, restitution and compensation, permanent expulsion of tribal relatives was
rarely practiced.

Within the last 20 years, however, coinciding with both the emergence of high-stakes gaming
operations and increased criminal activity, a number of tribal governments throughout North America
have, in helter-skelter fashion and at unprecedented levels, been dramatically redefining the
boundaries and meaning of what it means to be a Native citizen. Many have initiated formal
banishment and legal disenrollment proceedings against ever-increasing numbers of their own
relatives.




In fact, some tribal officials appear to be radically veering away from the positive ideology of self-
determination that has served them well, and have instead adopted an ideology of self-decimation in
which, for a variety of reasons, they are literally dismembering significant portions of their citizenry.
In recent years, the following tribes have or are in the process of banishing or disenrolling tribal
citizens: the Las Vegas Paiutes (Nevada); the Sauk-Suitattle (Washington state); the Oneida Nation
(New York); the Tonawanda Band of Seneca (New York); the Lummi (Washington state); the Mille
Lacs Band, Grand Portage Band and Boise Forte Band of Ojibwe (Minnesota); the Sac and Fox
(Iowa); and the Narragansett Tribe (Rhode Island).

The greatest concentration of disenrollments are occurring within the small nations of California,
including the Redding Rancheria, Enterprise Rancheria, Maidu Barry Creek Rancheria, the
Chukchansi of the Picayune Reservation, the Pechanga Band of Luiseno Indians, the Santa Rosa
Rancheria and the Viejas Band of Mission Indians.

Why is legal, political and cultural termination of our own kin occurring at such a heightened level
now? Are the tribal governments engaged in such harsh decisions acting in a manner that comports
with the traditional notions of identity discussed above, or are tribal officials now acting like privileged
and exclusive corporate clubs? What rights do the banished/disenrolled citizens have to contest this
most profound of severances? What role, if any, should the federal government play in these difficult
affairs, since those disenrolled also happen to be U.S. citizens as well and are entitled to basic civil
liberties like all other citizens?
Each of these heavy questions requires much more attention than an op-ed column allows. But I
should like to at least briefly discuss the first one - Why the obvious spike in banishments and
disenrollments?
I have been keeping an eye on this issue since 1996, when a federal court ruled in Poodry v.
Tonawanda Band of Seneca Indians that five Seneca citizens who had been permanently banished
by the tribe on the grounds that they had allegedly committed "treason" against the Seneca Nation
were entitled to federal review of the tribe's action, since banishment was considered a severe
enough punishment involving a sufficient restraint on their liberty. The five plaintiffs had accused
council members of "misusing tribal funds [and] suspending tribal elections," among other things.


As I delved deeper into this topic it became clear that while tribal governments have always enjoyed
the sovereign right to decide who can be recognized as tribal citizens and have, in many cases, the
treaty and constitutional right to evict nonmembers, it was not until the Supreme Court held in Santa
Clara v. Martinez (1978) that tribal governments, as one of their retained powers, clearly had the
right to decide all membership questions. Those internal decisions, Justice Thurgood Marshall said,
would generally not be interfered with by the federal government. Armed with this decision, larger
numbers of tribes began to more energetically look to legally terminate the status of certain tribal
members.
In the years after Santa Clara, the still-sporadic cases of tribal disenrollments and banishments
typically revolved around questions of family feuds and political power struggles, sometimes masked
by the alleged lack of sufficient blood quantum of those facing disenrollment.

By the early 1990s, as violent crime, drug activity and gang strength had intensified, and with Indian
gaming revenue and judgment funds providing some tribal governments with sudden and, in some
cases, enormous increases in economic wealth, these factors - but especially the gaming revenue -
provided some tribal officials with additional rationales on which to base disenrollment proceedings.
Of course, in some instances crime and economic benefits were simply grafted onto pre-existing
family conflicts, political and ideological power struggles, and racial criteria and blood quantum
issues. Anyone or combination of these factors could be and has been the basis on which to
terminate tribal citizens.

In a few cases, especially those centered around criminal activity, it appears that tribes have
reluctantly determined that disenrollment is one mechanism they may sometimes have to employ in
order to maintain community stability and they have carefully constructed clear guidelines and
procedures to carry out this most difficult process.

In a majority of disenrollment cases, however, some tribal officials are, without any concern for
human rights, tribal traditions or due process, arbitrarily and capriciously disenrolling tribal members
as a means to solidify their own economic and political bases and to winnow out opposition families
who disapprove of the direction the tribal leadership is headed.

What was historically a rare event - the forced and permanent expulsion of a relative who had
committed a terrible offense - has tragically become almost commonplace in Indian country, leaving
thousands of bona fide Native individuals without the benefits and protections of the nations they are
biologically, culturally, and spiritually related to.

While I fully support the inherent right of tribal nations to decide their own citizenry, I do not support,
nor does history or tribal tradition affirm, the oftentimes arbitrary power of some tribal institutions to
categorically disenfranchise and disenroll tribal individuals, entire families and, in some case, large 
groupings of tribal members on specious and questionable grounds.

One suggestion to safeguard the rights of those facing banishment/disenrollment would be the 
development of an independent, possibly inter-tribal body that would have the power to fairly and 
impartially review a tribal government's enrollment decisions. In theory, a tribal court would be the 
logical institution since presumably courts provide an unbiased assessment of a particular conflict.


Unfortunately, not every tribe has a court and not every tribal court is sufficiently independent of the
political branches it operates next to, since a constitutional separation ot powers continues to be an
issue for many tribes.
Tribal governments currently engaged in or considering such actions should look deep within their
own past for guidance on such important decisions. What most every tribe would discover is that
historically, and until very recent times, no tribal leaders lightly set about the permanent banishment
of individuals or families they were fundamentally related to.
Other far less draconian sanctions existed - ostracism, ridicule, temporary removal, physical
punishment - to restore balance to the community when individuals acted contrary to the laws and
customs of the nation. Financial factors, DNA tests, and a preponderance of U.S. government
historical records were never used to effectively terminate the existence of tribal citizens.
If tribal governments continue down the path of wholesale evictions of their own people on the most
spurious of grounds, they may not only eventually provoke the federal government to
comprehensively step in and interfere in this most private of tribal decisions; but more importantly,
they will continue to be acting in a manner that profoundly violates the true spirit of what it means to
be a tribal nation - a nation in which all are related by genealogy (culturally derived, not fractions of
blood), by land, by language and by spiritual traditions.
David E. Wilkins, Lumbee, is a professor of American Indian studies at the University of
Minnesota.