Course:CONS370/Projects/The Nooksack 306: Disenrollment of Indian Tribal Members in the United States of America

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note to Janette

Hi Janette, we replaced some of the original section headers. Nooksack Indian Tribe's Government and Authority is in place of administrative arrangements. Nooksack Indian Tribe Membership and Rights is in place of tenure. And The Nooksack Indian Tribe is in place of the assessment section as our discussion deals with the assessment of groups power, and we wanted to devote the description to the bigger picture topics you directed us to consider in the feedback on our references.

Summary

The Nooksack 306 are a group of First Nations who are descendants of ancestor Annie George being disenrolled by a 2013 tribal council decision made by a Tribal Council led by former Chairman Bob Kelly. The Tribal Council questioned the membership of the 306 members who are living descendants of elder Annie George. However, Annie George's name did not appear in a 1942 tribal census [1]. She was not granted land nor did she receive proper documentation for tribal membership. The vast majority of the Tribal Council were opposed to disenrollment of the 306 members. But Chairman Bob Kelly has said he won't recognize this General Council election as valid for the time being [1]. As Tribal advocates for the Kelly lead council argue that United States Federal Government interference over matters of internal tribal concern is generally prohibited. Even though the Nooksack Tribe has been re-recognized by the Trump Administration in March of 2018 [2]. The Nooksack Tribe continues to be surrounded by legal controversy to this day.

Description

Tribal Membership

The definition of Indigenous Peoples is predicated on self-determination. There are two parts to who is an Indigenous person. The first is self-identification as Indigenous. The second is acceptance from the Indigenous group as a member[3]. It is the second part that dictates the additional rights and protections afforded to an Indigenous person, separate from non-Indigenous citizens of a nation-state in most jurisdictions. This too is the case in the United States. Services and protections afforded to Indigenous Peoples, American Indians or Alaskan Natives, come from agreements between the federal government and a recognized Tribe. Thus a Native person's access to the services and protections is contingent on their tribal membership[4]. In the United States, Indian Tribes are referred to as 'domestic dependent nations'[5] and they have government to government relations with the federal government. Central to this relationship is the right of self-governance, including the right of Tribes to determine who belongs as a member[4]. While Indian Tribes had been determining their own membership well before colonial contact, it was with the Indian Reorganization Act in 1934 that the federal government formally recognized the right of Tribes to self-determine membership[6].

The Supreme Court case Santa Clara Pueblo v. Martinez affirmed the sovereignty, supreme authority, Tribes have in regards to tribal membership decisions[7]. As each Tribe sets their own membership criteria, a variety are used across the United States. However, most federally recognized Tribes use blood quantum as a primary determinant. Blood quantum is a colonial measure of someone's Indigenous heritage (American Indian in the context of this page)[8]. It is expressed as a fraction or percentage of 'Indian blood'. An individual's blood quantum is calculated by tracing their lineage back to their ancestors. Blood quantum decreases as children are born to parents with one having no or less 'Indian blood'[9]. Early usage of blood quantum was by British colonies or state governments to define people of American Indian and Black heritage for the purposes of racial discrimination. Federal usage of blood quantum came about in treaties, where in some cases specific benefits would be provided to tribal members based on their blood quantum. While originally in treaties blood quantum was not used to determine membership, the federal government, through laws and court decisions, evolved to use blood quantum as a definition of tribal membership. However, significant inconsistencies in how to determine blood quantum or what level of blood quantum constitutes being American Indian persisted[10]. As such, when tribal censuses were being conducted extensively by the federal government in the late 1800s and early 1900s, officials recorded members and blood quantum with varying standards[6]. Even after 1933 when blood quantum reporting was standardized, officials were not well versed on tribal society. A lot of officials made assumptions about whether or not someone was a member, and their blood quantum simply by appearance. So in many cases, people have been left off official rolls or have incorrect blood quantum recorded[9]. Most Tribes use these historic Census rolls as their base roll from which they determine the blood quantum of tribal members and those seeking membership. While most Tribes determine blood quantum from similar historic records, the use of blood quantum in membership requirements differs. Some Tribes require a level of blood quantum specific to ancestors of their Tribe, whereas others just require a level of blood quantum coming from any American Indian heritage. Tribes also differ between lineal descendant and parental enrollment rules for determining eligibility. Those with lineal descent rules require a member have a specific level of blood quantum and are directly connected with a tribal member on the base roll. Parental enrollment rules also have a blood quantum requirement and the need for a member's parents to have been enrolled[6].

Disenrollment

Disenrollment is the term used to describe when members are removed from their Tribe, and are stripped of their tribal citizenship. It is distinct from the concept of banishment, which involves the exclusion of individuals from a Tribe's territory, but not the permanent loss of tribal membership. Banishment is a practice that has been used by Indigenous Peoples in historic and current contexts. Historically it was used when a member committed a terrible crime as a way to maintain harmony amongst the community, while also having the banished person reflect on what they did. Those banished would temporarily lose their identity, security, and comfort derived from their family and lands. Today banishment still exists, and is still reserved for terrible crimes, usually when limits imposed through state or federal statutes restrict a group's ability to punish a person as they see fit. In many cases it involves a Tribe removing non-Indigenous people from their land[5]. Tribal governments have the authority to exclude Indigenous and non-Indigenous from their territory, albeit now small and fractured[11].

Disenrollment is a relatively new concept, which exists in more of a legal context. It came about after the Indian Reorganization Act, when the colonial construct of formal membership roles collided with Tribes being given the right to determine who is a member. Wilkins and Wilkins argue in their book, Dismembered, that disenrollments can be either politically or non-politically motivated[12]. Non-political causes include enrollment errors, dual membership, and being out of contact with the Tribe. Political disenrollments are usually motivated by political power or financial benefits[12]. Historically disenrollment was quite rare, however, after Santa Clara Pueblo v. Martinez affirmed the sovereign power of Tribes with regards to membership decisions, including disenrollment[7], cases have increased. The increase in disenrollment has been driven, in large part, by the increase in Tribal casinos after the 1988 Indian Gaming Regulatory Act and the per capita payments that arose from increased revenues[12].

The Nooksack Indian Tribe

Nooksack Indian Tribe traditional territory and Indian Reservation

The Nooksack Indian Tribe is located in Washington State, United States. It is one of 574 federally recognized sovereign tribal nations in the United States[13]. The Nooksack Indian Tribe received full federal recognition in 1973. however, they have occupied their territory since time in immemorial. While the Nooksack Indian Tribe is now located near Bellingham, Washington, their traditional territory covered over 400,000 acres, extending north in British Columbia, Canada, east to Mount Baker, west to the Georgia Strait, and south to Skagit county[14].

In the United States, Tribes have sovereignty and ownership over territory that was not taken by colonizers through force or ceded through treaty[5]. As the Nooksack Indian Tribe were signatories to the Treaty of Point Elliott, they ceded control over their territory in 1859 to the United States government in exchange for the protection of rights to fish, hunt, and gather, as well as services from the United States government[15]. At the time of ratification, the Nooksack were not given a reservation, instead they were told to live on the Lummi Indian Reservation. In 1965 the Tribe was given payment for part of their territory ceded in the Treaty of Point Elliott that they exclusively used and occupied[14]. Since the loss of their territory, the Nooksack Indian Tribe has gained approximately 2800 acres (1130 hectares) of trust land, including a small reservation[16]. On which approximately 1000 of the 2000 or so tribal members live[14].

The Disenrollment of the Nooksack 306

The Nooksack 306 are 306 former members of the Nooksack Indian Tribe. The 306 make up an extended family hailing from Annie George, a full-blood Nooksack according to the 306[1]. Annie George's children had married Filipino workers who had migrated to Washington State. The 306 are part of the Rabang, Rapada, and Narte-Gladstone families, who were enrolled in the Nooksack Tribe in the 1980s, after the Tribe received federal recognition[17]. The Rabang family had gained political power by the turn of the century, while gaining federal and state law enforcement attention for drug trafficking[18].

The disenrollment saga started in late 2012 when Terry St. Germain, a member of the 306, tried to enroll their children in the Tribe. The tribal enrollment officer, Roy Bailey could not find evidence from the Bureau of Indian Affairs supporting their enrollment application. The tribal council then concluded, without sitting members Rudy St. Germain and Michelle Roberts present as they are members of the 306, that all members of the Rabang, Rapada, and Narte-Gladstone families did not have sufficient evidence supporting their enrollment. In February 2013, "Notices of Intents to Disenroll" (page 109) were distributed to the 306[12]. Then there was a period of turmoil within the tribal courts, in which the 306, represented by Gabriel Galanda of the Galanda Broadman law firm, appealed the disenrollment proceedings on the grounds that the council acted outsides of its powers, and they were not given the due process required in the Nooksack constitution. Judge Montoya-Lewis of the tribal court ruled that the tribal council had the authority under the Nooksack constitution to process disenrollment and the council is protected judicially via sovereign immunity. After which the 306 were given notices of hearings that were to be held over the telephone, and limited to 10 minutes. A petition to the tribal court of appeals was submitted by the Nooksack 306 protesting the format of the hearings and Judge Montoya-Lewis's ruling. however, the court of appeals largely sided with Montoya-Lewis's earlier ruling. The main difference was the the court of appeals dictated that any disenrollment ordinance had to be approved by the US Federal Secretary of the interior. Thus the disenrollment could not proceed under the original ordinance in 2013. In late 2014 the tribal council sent a new disenrollment ordinance to the secretary of the interior, which was approved in January 2015[12]. Come 2016, the 306 had yet to be formally disenrolled, but the tribal council moved to bar them from voting in their March council elections. The tribal court judge at the time, Judge Susan Alexander, ruled that as the 306 were still members, they must be allowed to vote in the election. In response, the tribal council moves to cancel the scheduled March elections, thus letting the terms of 4 council members expire[17]. In addition the tribal council bared the 306's legal council, the Galanda Broadman law firm, from participating in the Nooksack Tribal Court. Judge Alexander and later the tribal court of appeals ruled that Galanda Broadman was not given due process. On March 28th, 2016 Judge Alexander was fired [by the Tribal Council] without cause. On April 22, 2016, a recall election was called for councilperson Carmen Tageant, a supporter of the 306. In July 2016 a special election was held to fill the expired council seats. However, the election was deemed invalid on the orders of Chairman Robert Kelly[12].

In late 2016, the Department of the Interior notified the Nooksack Tribal Council that since elections were not held in March of 2016, the council members had exceeded their terms as per Nooksack's constitution. As such there was no quorum, so the federal government would not recognize any actions taken by the tribal council after March 2016. And the council would not be able to to sign any contracts with the federal government. The Nooksack Indian Tribe was no longer federally recognized[19]. The Washington State government followed suit, revoking funds as well[20]. In addition, the Northwoods Casino, owned by the Nooksack Tribe, was shut down. The Casino is one of the Tribe's main employment and revenue sources[21]. On August 25, 2017, the Nooksack Tribal Council entered into an agreement with the United States Department of the Interior. In which the council agreed to host fair, timely elections with all members who would have been eligible to vote in March 2016, (thus including the 306). The election results were to be certified by the Bureau of Indian Affairs, and no actions made by the council after March 2016 were to be recognized. In exchange for the agreement, the sitting tribal council, chaired by Robert Kelly was recognized by the federal government, and thus funding would be restored[1]. Shortly after the Northwoods Casino was able to reopen, on the condition of fair elections, amongst others[21].

In December of 2017 an election was held to replace the March 2016 election that was never held. Members of the Nooksack Tribe voted for 4 council seats. On March 9, 2018, the Bureau of Indian Affairs certified the results of the election as valid, thus restoring full sovereignty to the Nooksack Tribal Council. The council then moved to disenroll the 306, thus making them not eligible for the upcoming elections to elect the remaining 4 council seats. Robert Kelly did not move on from the primary, and thus he did not win the chairman position. The election in May 2018 filled the remaining seats, all with pro-disenrollment members, and was recognized by the federal government[22].

Nooksack Indian Tribe's Government and Authority

The Nooksack Indian Tribe government consists of three organizations. The Nooksack Tribal Council, the Nooksack Tribal Court and the Nooksack Tribal Police Force[2]. However, unlike typical western government systems there is no formal separation of power between the legislative branch (Nooksack Tribal Council) and the judicial branch (Nooksack Tribal Court)[12].

The Nooksack Tribal council consists of 8 elected officials, including a chairman, vice-chairman, treasurer, secretary, and 4 councilmen. The chairman, secretary and 2 councilmen positions are filled by election every 4 years and the others are elected every 2 years. In the election, all Nooksack tribal members vote for who they want to see fill the seats of tribal power at council[2]. Throughout most of the disenrollment saga, Robert Kelly was the chairman of the tribal council. Robert Kelly himself was adopted by the Tribe as a child[12]. Currently, the chairman is Ross Cline, whose term is set to expire in May of 2022[23]. The tribal council represents the Nooksack Indian Tribe in negotiations and agreements with federal, state, and local governments. Within the Nooksack territory it has absolute authority over all matters, except where limited by the Nooksack constitution and, in those matters, it is subject to US federal law. The tribal council also creates and organizes the Nooksack Tribal Court[2].

The Nooksack Tribal Court consists primarily of the Chief Judge and court clerks[24]. At the start of the disenrollment saga, Judge Montoya-Lewis was the Chief Judge. She resigned in 2014 after being appointed to a Washington State superior court judgeship. Judge Susan Alexander replaced her until she was fired in March 2016. Raymond Dodge was appointed in her place[12], and remains as the Chief Judge to date[24]. The tribal council appoints the Judges and has the ability to disband the court as they see fit. The tribal court has jurisdiction over all civil matters on tribal land as well as issues related to the Tribe's government. However, the court does not have jurisdiction over matters that would interfere with the tribal government's sovereign immunity[2].

The Nooksack Tribal Police Force is established by the tribal council. They have jurisdiction over all lands owned in the name of the Tribe, to the extent by which their jurisdiction has been limited by federal or state law. All members of the police force are employees of the tribal council and as such will have their authority duty assigned by the council[2]. The council used the police force to evict members of the 306 from their homes on Nooksack land[19].

Nooksack Indian Tribe Membership and Rights

The Nooksack Indian Tribe relies on blood quantum criteria to determine who is eligible for membership.To qualify for membership individuals can be:

  • An original Nooksack Public Domain allottee or a direct lineal descendant alive on January 1, 1942,
  • A person of Indian blood who was on the 1942 census roll of the Nooksack Tribe,
  • A person who received a payment in 1966 as part of the Tribe's compensation for their traditional territory, or
  • A person that is a lineal descendant of those listed in the 1942 census or received the 1966 payment given that they possess at least one-fourth Indian blood[2].
Treaty of Point Elliot

The Nooksack membership requirements rely on historic membership rolls that were taken at a time when the Tribe was not federally recognized and did not have a reservation. Thus, questions on the accuracy of the rolls at depicting who were Nooksack members at the time can be raised. And thus the merits of determining current membership with those records are in question[9]. The membership requirements were amended in 2013. Previously there was an additional criterion enabling Nooksack membership. Article II, section 1 (H) of the Nooksack constitution stipulated, "persons who possess at least ¼ Indian blood and who can prove Nooksack ancestry to any degree”[25].

As a whole the Nooksack Indian Tribe has sovereignty over the land held in their name, to the extent by which it is not diminished by the US Congress. They hold all property rights to land held in their name, as well as governance rights over the area held in their name[5]. The rights to the land are held in trust by the federal government. As such, while the Tribe has jurisdiction over the land, they are limited to a certain extent with what they can do with it[26]. Tribes' ownership over the land is communal, thus all property rights are held by the community as a whole, not by individuals. In addition, they can only sell their land to the federal government[5].

In terms of individual rights and benefits, there are many available to members of the Nooksack Tribe. In addition to treaty rights to fish, hunt, and gather, members are provided with services provisioned by the federal government. these include health care, housing support, and education. These rights are part of those guaranteed to the Nooksack Tribe in exchange for their territory when they signed the Treaty of Point Elliott[15]. In addition there are Tribal provisions for additional benefits such as education assistance, funeral assistance, holiday assistance, canoe repair, and disaster relief assistance. There are no per-capita payments made to Nooksack members[27]. Within the ordinance there is a section that details that members currently part of disenrollment proceedings will have their benefits withheld until the conclusion of the proceedings. The benefits are contingent on the members' enrollment status[27][4].

Affected Stakeholders

The Nooksack Indian Tribe has the following social actors in order from most powerful to least powerful:

1.     The United States Federal Government (United States Department of the Interior and Bureau of Indian Affairs)

2.     Nooksack Tribal Council (elected officials, including former Chairman Robert Kelly)

3.     Nooksack Tribal Court

4.     Nooksack Police Force

5.     Nooksack Members

6.     The 306

The relevant stakeholders involved in the 306 disenrollment include the Nooksack Tribal Council and the Nooksack tribal members. The role of the tribal council is to govern the property of the Nooksack Tribe and decide who and who is not part of the Tribe. Much controversy surrounds the disenrollment of the 306 and whether it was justified and lawful to do so under US federal law and the Tribe’s constitution.

The Federal Government and the Tribal Council

The letter to Chairman Robert Kelly (and the Nooksack Tribal Council) in April 2016 from the United States Department of the Interior indicates that the United States Federal Government was proposing to withhold funding for the Nooksack Indian Tribe [19]. The reason behind the funding being withheld was that the Nooksack 306 were not being allowed to vote for new tribal council members under order from Chairman Robert Kelly and his Tribal Council, Even though the Nooksack 306 trial had ruled that, to date, the Nooksack 306 were considered legally enrolled members of the Tribe. Although the Nooksack 306 might eventually face disenrollment, they were then currently enrolled members (as of the date of the letter, 2016). As stated by US federal law, “neither the Constitution nor the Nooksack election code prohibits an enrolled member from voting even where the member is the target of disenrollment proceedings”[19].  As the letter from the United States Department of the Interior stated, “pursuant to Nooksack Tribe's constitution and laws, as of April 2016, the Tribal Council is no longer operating with a quorum and therefore lacks authority to conduct business on behalf of the Tribe”[19]. Thus, the US Department of the Interior has power to intervene with the disenrollment proceedings but not explicitly. It is the tribal council's role to say who is and is not part of the Tribe. In the case of the 306 disenrollment, the lack of a quorum resulted in the inability of the Nooksack Tribal Council to take official action, thus putting all Federal funding to the Tribe at risk [19]. The United States Federal government can only provide funding and service to a Tribe when the tribal council is properly elected and authorized pursuant to Federal Law and the Tribe’s constitution. In the 306 case, the tribal council and Chairman Robert Kelly did not hold the scheduled election in March 2016, thus the terms of 4 council members expired[12]. Fair elections must be held with the participation of all members of the tribe, including the 306 as they were not disenrolled before the council's term had expired[1]. No funding from the US or State government could be approved until the Tribal Council had a fair election to fill the empty seats, as per the Nooksack constitution. The Bureau of Indian Affairs would take over the policing duties if the Nooksack police did not stop evicting members who were subject to disenrollment proceedings[19]. The federal government clearly asserted its power over the tribal council through its ability to control funding.

The United States Federal Government has been taking a tough stance against the Nooksack Tribe in recent years, accusing its disputed leaders of operating an illegitimate Tribal Council that doesn't deserve federal funds [28]. As such, the Department of the Interior did not recognize the council that was led by previous Chairman Bob Kelley as being legitimate. A submission by the United States Federal Government described his faction as an "unelected, unrecognized, and illegitimate group" of individuals who ousted more than 300 of their fellow citizens, refused to convene elections and dismantled the Tribal judiciary, all in an attempt to maintain power on the reservation in Washington State[28]. Essentially, the Nooksack Indian Tribe was no longer a federally recognized Tribe. In the past, the Bureau of Indian Affairs has withheld funds from Tribes that had problems with the integrity of its Tribal Council leadership, but this was not the case for the Nooksack Tribe. Tribal advocates for the Kelly faction argue that Federal interference over matters of internal tribal concern is generally prohibited. Even though the Nooksack Tribe has been re-recognized by the Trump Administration in March of 2018 [2], The Nooksack Tribe continues to be smothered in legal controversy to this day.

The Tribal court does have some power, we did see that some decisions were made in favor of the 306[12]. However, their main power was in the ability to slow down the disenrollment process, as this did eventually lead to the federal government stepping in once the terms of the council had expired[19]. But ultimately the tribal court's power is extremely limited by the tribal council's ability to fire judges and disbar the courts as they see fit[12].

The Nooksack Police Force's power is derived solely from the tribal council's directives[2]. While alone they do not have much autonomous control, they do serve to increase the power of the tribal council, as seen through their enforcement of evictions against the 306[19].

Supporters of the 306

Carmen Tageant (a member of the Nooksack Tribal Council) had a strong voice for the 306 that received letters informing them that their citizenship would be revoked. Tageant was very outspoken about her support for the 306 and believed they should be [what?]. Tageant’s views did not sit well with the rest of the Nooksack Tribal Council and soon after Tageant’s voice started to gain traction, a boudoir photo was leaked of her on the Nooksack community facebook group[29]. This photo resulted in Tageant becoming shamed and abused online along with her losing her position in the council and her removal from the Tribe. This photo was suspected to have been posted by a fellow council member LeAndra Smith as an investigation found that her phone as well as computer matched the IP address that logged into the fake account[29]. Rather than having the community support Tageant during her leaked photo, every comment attacked her in a negative way and shamed her for her photo which was intended for her significant other more than sixteen years ago. All Tribe members were quick to judge Carmen Tageant and had no issue stripping her of her citizenship. She lost her family, friends, income and title after being harassed and humiliated by the people she worked so hard alongside.

A group of forty Nooksack members also faced ramifications for their support of the 306. In March 2016 enrollment proceedings were brought against forty or so other members of the Nooksack Tribe on the basis of dual membership in an Alaskan Native Tribe[12]. While the ultimate fate of these members is unclear, the power of the tribal council is evident. While the disenrollment may be on legitimate grounds as per the constitution[2], it is clearly a disenrollment of political nature. This indicates just how much power the tribal council has over members of the Nooksack who voiced their concerns.

Interested Outside Stakeholders

The Nooksack 306 disenrollment brought to attention the scale and severity of disenrollment that is sweeping across the nation[30]. Interested outside stakeholders such as tribal advocates, have higher ethical standards required of them. This higher ethical standard is in place to refrain from participation in disenrollment unless due process is followed. Tribal advocates face ethical dilemmas when they represent tribal members in disenrollment cases. Evidence suggests that Tribes are trending away from the imposition of American-based jurisprudence within their own judiciaries. A tribal lawyer's (tribal advocate) responsibilities with respect to tribal sovereignty depend largely upon how the term is defined. In the Georgetown Journal of Legal Ethics, Russell states

“the internal strife highlighted by the disenrollment movement again proves challenging for advocates appearing in tribal courts for tribal clients. Difficult as it often is to respect traditional tribal notions of sovereignty when representing tribal clients, the problem is compounded when both parties argue for variant interpretations of tribal sovereignty as applied to the same Tribe. Tribal codes of ethics, particularly those that comprise guidelines for attorneys, hold sacrosanct the importance of the maintenance of tribal sovereignty. For tribal attorneys, the fact that these codes often fail to contemplate variant interpretations of what that sovereignty might mean poses an ethical quandary that they feel ill-equipped to answer."[30]

The tribal council has to power to overrule the tribal court no matter the verdict, due to their authority to construct the court as they see fit[2].

Another group of external actors interested in the disenrollment is the Association of American Indian Physicians. The concern regarding the mental health of those who face tribal disenrollment is their key focus. Those who are disenrolled lose their identity, and generations of cultural significance to one's life leading to anxiety, depression and more mental health concerns.[31]

In 2019, Washington State removed the charges against the Rabangs who are members of the Nooksack 306 for fishing without a permit. The Rabangs stated that although they were considered to be disenrolled by the Nooksack Tribe, they were never lawfully disenrolled by the Nooksack Tribe. This allowed the Rabangs to still fall under the rights stated by the Treaty of Point Elliot which guaranteed Nooksack Indians the right to take fish at usual and accustomed grounds. The judge dismissed the case "in interests of justice"[32].

Discussion

The case of the disenrollment of the Nooksack 306 brings up two main issues. The first surrounds what it is to be a member of an American Indian Tribe and the second surrounds how American Indian Tribe sovereignty manifests itself.

What it is to be a Member of an American Indian Tribe

Historically Indigenous People did not have strict membership rolls, nor did they have membership applications. Instead communities were connected organically through language, land, spiritual practices, relationships, and traditions[5]. Nations all had different ideas of what it would take for families and individuals to belong. however, they were generally based on respect and reciprocity. Strict membership definitions have come up as a result of centuries of interactions with colonial governments, and thus fit more along the lines of colonial systems of citizenship than Indigenous ones. One key issue with how tribal membership is determined is the reliance on blood quantum based criteria. Blood quantum was historically used by colonial governments to discriminate against American Indians[10]. It is quite ironic that Indian Tribes set their membership requirements using the same concept. To further the issue of blood quantum based membership is that the blood quantum calculations are done based on historic census rolls. This is an issue as the rolls were drawn up by federal government officials who had limited knowledge of Indigenous culture and the communities which they surveyed[9]. Thus the accuracy of historic Tribal membership records and how they correlated to actual heritage is in question. This issue is of particular importance in Tribes that require members to have a specific blood quantum level from the Tribe in question, not just any Indigenous blood[6]. The Nooksack's current membership requirements stipulate that members come from ancestors that are listed on historic federal rolls[2]. However, their previous requirements allowed those of any Indigenous descent[25]. This indicates how the modern concept of what it is to belong to an Indian Tribe is fragile and rather arbitrary.

The federal government used blood quantum and arbitrary definitions of Indigeneity to restrict the number of Native American individuals. It now seems as if some Tribes are using the same arbitrary definitions and laws in the same way. In some Tribes, disenrollment is happening in order to reduce the number of members so that per-capita payments are larger. Disenrollment motivated by per-capita payments has been driven by the establishment of tribal casinos[12]. While the Nooksack Tribe does have a casino[21], there are no per-capita benefits to members[27], so the disenrollment was not motivated financially as many other cases have been. Instead, some would contend that the disenrollment was driven by the desire for power.[12] The 306 disenrolled members made up approximately 15% of the Tribe's membership, and thus a strong voting bloc. Others would suggest that the disenrollment was due to criminal past of the Rabang family, one of three families that comprise the 306. There has been a dispute within the Tribe, documented since 2000, claiming that the Rabang family made use of the previously lax membership laws, climbed the ranks of the tribal council, and used their membership and power for nefarious purposes[18]. While others may attest it was simply a matter of enrollment accuracy, and that the families should have never been enrolled in the first place[20]. However, the amendment to the membership criteria in 2013, after the disenrollment saga began[25], would indicate otherwise.

Regardless of why the 306 were disenrolled, the loss of tribal membership has profound effects on Indigenous People. Some of the issues that arise are of a practical nature. In the United States rights and services afforded to Indigenous People are tied to tribal membership[4]. Thus the loss of membership results in the loss of fishing rights, health care, housing, schooling assistance, and jobs[17]. However, more severe are the social and psychological ramifications stemming from the loss of one's citizenship. By taking away one's tribal citizenship you are destroying their social and cultural connections. Some argue "[i]t is a form of punishment more primitive than torture" (page 111)[12]. As such, we must consider not only the loss of rights faced by the 306, but also the loss of identity.

How American Indian Tribe Sovereignty Manifests Itself

When it comes to membership decisions, including disenrollment, the Tribe, as represented by its government, has complete control. The sovereignty over membership decisions is key to self-governance[7], which in turn is key to the system of government to government relationships between the United States of America and federally recognized Indian Tribes[4]. However, the case of the Nooksack 306 draws into question the sovereignty that Tribes actually posses. The Nooksack Tribal Council had moved to originally disenroll members in 2013. However, due to the process playing out within its tribal court, the process was continuously delayed. It was in 2016 that the tribal council formally, in their eyes, disenrolled the 306 members[12]. However, the federal government did not view the disenrollment as legitimate, as some council members' terms had expired. therefore decisions made by the council after March 2016, were not made with quorum, and could not be enacted by law[19]. The federal government was careful to oppose the disenrollment on the grounds that it violated Nooksack's own constitutional proceedings. this was done to ensure they did not interfere with the sovereignty of the tribal council from a legal standpoint. But based on the language used by federal officials and judges throughout the ordeal[33], it is apparent that their actions were motivated based on what they believed was just, not their attention to the details of tribal government proceedings.

The federal government was able to successfully intervene in the disenrollment of the 306, Temporarily reinstating their membership and allowing them to vote in the election. While ultimately the 306 were still disenrolled[22], the federal government was able to provide them with slightly more due process than what had transpired prior to the Department of Interior's overt involvement. The federal government's power over seemingly sovereign issues was illustrated by this situation. It really highlights the 'dependent' part of the characterization of federally recognized Tribes as domestic dependent nations[5]. The federal government was able to exert control over the Nooksack Tribe by withholding funding for health, housing, and other programs[19] and shutting down the Tribe's main source of revenue, the Northwoods Casino[21]. It was extremely effective, leading to compliance from the tribal council shortly after[22]. It is evident that Tribes are still highly dependent on the federal government, and this is something that the government has been maintaining[26]. So the concept of sovereignty, absolute power, is hard for Tribes to employ in practice.

In this case the federal government was technically not interfering with the sovereignty the Nooksack had over memberships decisions, as they were simply ensuring the Nooksack adhered to their own constitution. The federal government's ability to effectively control the Nooksack council gives rise to concerns that they could exercise similar control over sovereign decisions in the future, with similar effect. Explicit federal interference with Tribe sovereignty could manifest itself when the federal government has more at stake. while the courts may eventually rule it illegal, the Tribes may cave in due to issues associated with the loss of funding well before the a conclusion is reach in the courts.

Recommendations

Allow the use of oral history in membership applications. Oral history is very much a part of Indigenous' ways of life, and as such it should be considered as evidence of ancestral heritage for enrollment purposes. It does not make sense for oral history to not be valued by Indigenous governments, when it is being used by Indigenous governments when they make claims for control of their traditional territory[5].

Disenrollment for individuals leads to many negative mental health concerns along with an individual becoming stripped of their identity and social life[31]. It has many negative implications for those who become disenrolled from their Tribe. Tribes lay heavy emphasis on leadership, community interactions and the wellbeing of one another in the Tribe. however, the case for the 306 that were impacted shows a different side to that. Tribes could look at changing their constitutions to ban disenrollment or heavily restrict it, as some Tribes have already done[12].

The federal government could guarantee rights to things like healthcare, education, and housing support to Indigenous individuals. This way, if people are disenrolled they will not lose some of the more practical benefits to membership alongside the social and cultural loses they are already experiencing. This means that those disenrolled with have access to mental health support whilst facing a traumatic experience, something that is important[32].

In order to address the power the federal government has over seemingly sovereign decisions, the economic prosperity of Tribes could be increased so they are not as dependent on federal support. One mechanism would be through improving their property rights so Tribes and individuals can sell and leverage their land[26].

References

  1. ↑ 1.0 1.1 1.2 1.3 1.4 Cornwell, Paige (August 26, 2013). "Nooksack 306 Fight to Remain in Tribe". Seattle Times. Cite error: Invalid <ref> tag; name ":14" defined multiple times with different content
  2. ↑ 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 Nooksack Indian Tribe (August 3, 2013). "Constitution and Bylaws of the Nooksack Indian Tribe of Washington" (PDF). Retrieved April 8, 2020.
  3. ↑ Secretariat of the Permanent Forum on Indigenous Issues, U.N. (2004). The concept of Indigenous Peoples.
  4. ↑ 4.0 4.1 4.2 4.3 4.4 The United States Department of Justice (June 17, 2014). "About Native Americans". Retrieved April 8, 2020.
  5. ↑ 5.0 5.1 5.2 5.3 5.4 5.5 5.6 5.7 McNeil, Kent (2016). "Indigenous territorial rights in the common law". Osgoode Legal Studies Research Paper Series. 12(13).
  6. ↑ 6.0 6.1 6.2 6.3 Gover, Kirsty (2010). "Comparative Tribal Constitutionalism: Membership Governance in Australia, Canada, New Zealand, and the United States". Law and Social Inquiry. 35(3): 689–762.
  7. ↑ 7.0 7.1 7.2 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
  8. ↑ Martin, Michel (Host); Treuer, Anton (Guest) (November 1, 2012). "Who is Native American, and Who Decides That?". Tell Me More. NPR.
  9. ↑ 9.0 9.1 9.2 9.3 Chow, Kat (Correspondent); Rule, Elizabeth (Guest) (February 9, 2018). "So What Exactly is 'Blood Quantum'?". NPR.
  10. ↑ 10.0 10.1 Spruhan, Paul (2006). "A legal history of blood quantum in Federal Indian Law to 1935". South Dakota Law Review. 51(1): 1–50.
  11. ↑ Jeremy, Wood (2018). "Tribal Exclusion Authority: Its Sovereign Basis with Recommendations for Federal Support". American Indian Law Journal. 6(2): 197–269.
  12. ↑ 12.00 12.01 12.02 12.03 12.04 12.05 12.06 12.07 12.08 12.09 12.10 12.11 12.12 12.13 12.14 12.15 12.16 12.17 Wilkins, David; Wilkins, Shelly (2017). Dismembered: Native Disenrollment and the Battle for Human Rights. Seattle, WA: University of Washington Press. ISBN 9780295741581.
  13. ↑ National Congress of American Indians (February 2020). Tribal Nations and the United States: An Introduction (PDF). Washington, D.C.
  14. ↑ 14.0 14.1 14.2 Nooksack Indian Tribe. "About Us". Retrieved March 10, 2020.
  15. ↑ 15.0 15.1 "Treaty of Point Elliott, 1885". Washington State Governor's Office of Indian Affairs.
  16. ↑ United States Census Bureau (January 1, 2020). "American Indian, Alaska Native, and Native Hawaiian Areas [Data set]". TIGERweb. Retrieved April 6, 2020.
  17. ↑ 17.0 17.1 17.2 Goldfarb, Ben (April 17, 2016). "In Washington, the Nooksack 306 Fight to Stay in Their Tribe". High Country News.
  18. ↑ 18.0 18.1 Cabrera, Luis (August 12, 2000). "Nooksack Elders Battle Outsiders". AP News.
  19. ↑ 19.00 19.01 19.02 19.03 19.04 19.05 19.06 19.07 19.08 19.09 19.10 Roberts, Lawrence (Dec 23, 2016). "Letter To Chairman Robert Kelly" (PDF). Turtle Talk. Retrieved April 8, 2020.
  20. ↑ 20.0 20.1 Shapiro, Nina (May 28, 2018). "New Nooksack Tribal Chair Says its Time for Disenrolled to Move Along". The Seattle Times.
  21. ↑ 21.0 21.1 21.2 21.3 National Indian Gaming Commission (September 11, 2017). "Notice of Settlement Agreement Entered with the Nooksack Tribe".
  22. ↑ 22.0 22.1 22.2 "A 'Banana Republic' No More? Nooksack Tribe Claims Turnaround on Disenrollment Drama". Indianz.com. August 7, 2018.
  23. ↑ Nooksack Indian Tribe. "Nooksack Tribal Council". Retrieved April 12, 2020.
  24. ↑ 24.0 24.1 Nooksack Indian Tribe. "Tribal Court". Retrieved April 12, 2020.
  25. ↑ 25.0 25.1 25.2 Jarvis, Brooke (January 18, 2017). "Who Decides Who Counts as Native American?". The New York Times Magazine.
  26. ↑ 26.0 26.1 26.2 Riley, Naomi Schaefer (July 30, 2016). "One Way to Help Native Americans: Property Rights". The Atlantic.
  27. ↑ 27.0 27.1 27.2 Nooksack Indian Tribe (December 18, 2019). "Title 99: Nooksack Indian Tribe General Welfare Ordinance" (PDF).
  28. ↑ 28.0 28.1 "Trump administration calls out Nooksack Tribe for abuses of power". Indianz.com. April 4, 2017.
  29. ↑ 29.0 29.1 Hu, Jane (February 1, 2020). "One woman took a stand against tribal disenrollment and paid for it". High Country News. Retrieved April 11, 2020.
  30. ↑ 30.0 30.1 Russell, Nicole (2017). "To further justice in the greater Native American community". Georgetown Journal of Legal Ethics. 30(4): 991.
  31. ↑ 31.0 31.1 Walker, Dale (2015). "Association of American Indian Physicians Disenrollment Background". Association of American Indian Physicians.
  32. ↑ 32.0 32.1 Galanda Broadman (March 11, 2020). "State Court Honors Nooksack 'Disenrollee' Treaty Fishing Rights". Indian Country Today.
  33. ↑ Last Real Indians (December 19, 2019). "Nooksack 306 Disenrollment Saga Concludes Year Seven Amidst Violence Against Indigenous Women And Elders".


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