It seems the scales are tipping in the direction of JUSTICE in tribal disenrollments. In recent cases, the 9th circuit has scoffed at the weakness of congress and seem to grow weary of the abuses they see.
After a DECADE of writing about disenrollment, it's good to see justice.
The 9th Circuit Court of Appeals, however, said the Kennedy faction's complaints didn't matter. Even if the disputed members hadn't participated, the new constitution would have been approved, a three-judge panel stated on Friday.
"In certifying the election results, the Bureau observed that even if all the votes of members that Kennedy Group disputed as qualifying for membership were ignored, the yes votes would have still won a majority," Judge J. Clifford Wallace wrote in the unanimous decision.
"Under the new constitution’s membership framework, there is no dispute that the 74 disenrolled individuals qualify for tribal membership," Wallace wrote in another part of the decision. "Thus, were we to remand for the Bureau of Indian Affairs to reconsider its decision, there would be no possibility whatsoever that the agency would change its reasoning as to the disenrolled individuals because those people clearly qualify for tribal membership under the new constitution."
Read the REST OF THE ARTICLE HERE
11 comments:
So there is a tribe out there that wants to be whole and a Court that can see the truth. It has been a long time coming, and opens the door to more decisions that stop tribal leaders from hurting their own people.
What I like about this is that the 9th circuit ruled on an internal vote that the constitution would have passed even without the disenrolled's participation. That is huge because if they can rule on an internal vote in that tribe, it could rule that the law that Pechanga passed in 2005 that outlawed disenrollment one year before the Hunters were disenrolled in 2006 was legally binding meaning the Hunters were covered by the 2005 law. So the courts can now insist that tribes follow their own laws?
Wow!! This is extremely awesome!!! Best to that family. Suprising the DISENROLLMENT facebook page doesn't acknowledge this judgment. Very good for Indian Country!
To bad that a band forgets ALL members have rights, even when they vote on it and pass it. ALL means ALL
Well that is some promising news.
If you think that this is good news just wait until you hear the 9th circuit ruling on the Pala case concerning the RICO violations by the Pala EC.
It's about time that they are investigating the Pala EC members.
They have been getting away with some serious crimes in Pala, even trying to cover up some Murders that some say were ordered by Smith and probably paid for with Tribal funds.
It's really not good news for the Timbisha Shoshone Tribe, the Federal Government, via the BIA, is trying to control the reservation because it is part National Park, namely Death Valley. So, the BIA inserted a puppet council led by a non-native to do their bidding, thereby eliminating the truly elected tribal council and Timbisha sovereignty.
The problem was competing factions trying to gain control of the Tribe. A new Constitution was adopted that prevents tribal members from being disenrolled without due process. A Secretarial Election was conducted and certified by the federal government. The plaintiffs in the case agreed that the Constitution was not under consideration in the legal action. A large majority voted in favor in the new Constitution, so the Court ruled that the Plaintiff's claims were moot and dismissed.
Now the Timbisha Shoshone are free to elect a new council without interference. If they want the Plaintiffs to be their leaders they can elect them. If they want to disenroll members they can amend the Constitution, or provide due process and legally disenroll them. If they want to remove elected leaders from office there is a provision for that in their Constitution.
What they can't do is take action without the approval of the Tribal Council, or disenroll members without giving them due process, or divide the Tribe into factions and undermine their own laws.
I dont know enough about the internal political structure that this tribe utilizes, (does their Original Constitution give the BIA final say in eneollment issues, how their governmental structure is set ul through their governing document in terms of who has what rights in terms of making decisions, and how their enrollment eligibility is determined) to answer the question whether or not the 9th circuits decision was just or not. But, if the BIA can interfere in this tribes internal affairs and force a tribe to elect a new council, force a tribe to allow "new" members to vote on a "new Constitution" that would allow thesd previously non-memvers to be ome members, and then say that any opposition to that exercise "doesn't matter," then they can do it anywhere else, whichnundermines tribal sovereignty and makes tribes look totally dependent on non-natives to help them govern themselves. I dont think this action should go without at least contesting the 9th decision theough the federal appeals process and try to get the Supreme Court to clarify this decision. That in and of its self is also dangerous, especually with the decisions SCOTUS has recently handed down limiting or even question soverignty, identity, and tribal rights. Wouldn't these matters beeft up to the communities that created them, rather than having an outside hand and entity that has and continue to take and assert their dominance over all tribes the ability to tell Indian Country just how to govern themselves. Also, "due process" was born out of Western English legal reasoning and thought, applykng that within Indian Country has always been a problem because of its application through detainment and court procedures concerning incarceration. Tribes should gave their own ability to decide how they govern themselves, and I think that right should be left alone and not touched by outside forces.
It would have been good if the tribe could have resolved their own issues without the participation of the BIA. Unfortunately there were three competing factions seeking to take control. If you read the decision you will find that there were no issues regarding the membership until Joseph Kennedy was elected, accused Tribal Committee members of misconduct, and then disenrolled 74 members of the tribe without due process.
This stuff happens all the time. The leaders say anyone who says what they did is wrong is infringing on the tribe's sovereignty. What would have been right is for the Tribal Council to have hearings on the alleged misconduct of the Committee members. The Tribal Council could then remove those Committee members if misconduct was found. Instead the tribe split into factions and conducted separate elections.
Now you have multiple Tribal Committees, and each claims authority. How can the BIA give them federal funds? They have to pick and choose which is the "authentic" Tribal Committee before they can conduct a government to government relationship. Also one faction wants to exclude a voting block and did that by disenrolling members.
You should read the decision. What you call non-members were federally recognized members that appeared on the tribe's membership roll until they were disenrolled in order to remove their voting block. The tribal leaders had no respect for their laws or for the government to government relationship. They wanted to take control of the tribe and get rid of some members they viewed as obstacles.
The court decision gives the tribe recognized leaders, a viable Constitution, and restores the disenrolled members. If the Tribal Council wants to change things they can do it by voting for it. If the members want new leaders they can elect them. If the members who were disenrolled are really outsiders, they can disenroll them legally.
The BIA and the Court resolved a conflict created by competing factions seeking to control the tribe. All you have to do is look as Chukchansi to see how competing factions can destroy a people.
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