Deborah Locke: Disenrollment: My Personal Story

Tribal Citizenship Conference

Deborah Locke, adopted by a Fond du Lac Band of Lake Superior Chippewa couple when she was a small child, shares her heartbreaking story of how she and her adopted siblings were disenrolled by the Band decades later because they were not the biological descendants of Fond du Lac Band members and also because they did not meet the minimum blood quantum requirement as established by the Minnesota Chippewa Tribe constitution.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Resource Type

Locke, Deborah. "Disenrollment: My Personal Story." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Sarah Deer:

"Our final panel today is looking at the question of disenrollment. So we have a number...we have three speakers who are going to each discuss one angle or one facet of the controversial issue of disenrollment. So we have legal, personal, and traditional perspectives on this question. We have three speakers.

I'm going to start with Deborah Locke from Turtle Mountain. She is a former editorial board member for the St. Paul Pioneer Press and a former reporter for the Milwaukee Journal. She also edited and wrote for the newspaper of the Fond du Lac Reservation, worked for almost three years on a legacy amendment funded project on the 1862 U.S.-Dakota War at the Minnesota Historical Society and she is currently a freelance writer for the Mille Lacs Band.

Shawn Frank from the Jacobson Law Group is a member of the Seneca Nation of Indians, joined Jacobson Law Group in 2002, has substantial experience representing Indian tribes, tribal organizations and entities that do business with tribes. He became a shareholder in 2003. Mr. Frank does speak regularly at lawyer's seminars on the subjects of tribal sovereignty, doing business in Indian Country, the Freedom of Information Act and the administrative appeals through the Department of Interior.

And finally Sharon Day, Executive Director of the Indigenous Peoples Task Force from Bois Forte Band [of Chippewa]. Ms. Day is one of the founders of the Indigenous Peoples Task Force, formerly known as the Minnesota American Indian AIDS Task Force. It began as a volunteer organization with all of the work performed by the board of directors. They hired their first staff, Ms. Day, in 1988 and she has served in this capacity since that time. Ms. Day has received numerous awards including the Resourceful Woman Award, BIHA's Woman of Color Award, the National Native American AIDS Prevention Resource Center's Red Ribbon Award, and most recently the Alston Bannerman Sabbatical Award. She also is an editor of an anthology and a lead walker who carries the water from the Gulf of Mexico to Lake Superior with the Mother Earth Water Walk. I'm looking forward to all their presentations, so please join me in welcoming our panel."


Deborah Locke:

"Hi, I'm Deborah. It's nice to be here today. I hope you can hear me. I received this letter dated January 6th from the Fond du Lac [Band of Lake Superior Chippewa] Reservation Business Committee:

Ms. Locke,

It's come to the attention of the Fond du Lac Reservation Business Committee that you are not the biological daughter of Frederick and Anna Marie Locke and that you were in fact adopted by Mr. and Mrs. Locke. Under Article 2, Section 1c of the Minnesota [Chippewa] Tribe Constitution, only the biological children of members of the Minnesota Chippewa Tribe are eligible for membership in the tribe and if born after July 3rd, 1961, must also possess one-fourth degree MCT blood quantum.

There's a lot of lawyers in this room. I think most of you know that by heart.

The Reservation Business Committee has accordingly directed that disenrollment proceedings be initiated against you in accordance with MCT Ordinance #9. You have 30 days from the date of this letter to request a hearing before the Fond du Lac Tribal Court to provide evidence and argument as to why you should not be disenrolled.

Think about that.

In addition, per capita payments from the Band are being immediately suspended pending the final outcome of this matter.

Linda J. Nelson
Enrollment Officer

I was standing outside the Rosedale Target when I read that letter one cold day and I cannot even explain to you how weird I felt. I felt damn weird. The day before I was identifying with Pocahontas, today I'm a white girl. The day before I was a Band member. I had family at Fond du Lac. Today I'm cut free. I'm a white girl. I tell you, that felt a little bit weird and it also felt embarrassing. More than anything else it felt embarrassing. I thought, ‘What did I do to bring this on? I was born and I was adopted. That's all that I ever did. What...they've got Band members that shoot each other, that use drugs, that steal, that...the list goes on and on and they're getting rid of me?' I tell you, I was totally perplexed. I called my mother from my cell phone in the parking lot and told her what I'd received. She was absolutely incensed. She was very, very upset and bewildered and she started calling relatives after we hung up. So let me tell you a little bit more about my mother and my dad.

They adopted four American Indian kids in the 1950s and they had always...they wanted children. They went to Catholic Charities in Duluth. A social worker asked them if it was okay if the children were Indian. My mother is a Band member at Fond du Lac and she said, ‘Are you serious? We don't care what color they are.' Dad said the same thing and so four children came fairly quickly after that. I was the first and when I was a little girl my parents had a book that they read to all of us starting with me that was called The Chosen Baby and it was about two kids named Peter and Mary. And Peter and Mary were adopted, and what I took from that book starting when I was three years old is that being adopted is really special. Being adopted means that you are a gift to someone and being adopted means that you were chosen for a very special reason. And so I lived with that magic for a long time and most of my life believing that adoption is a good thing.

So that's my family background a little bit, and I'll tell you that the Fond du Lac Band was also interested in that family background starting with this letter dated July 22, 2009. The Band had sent a letter to the Minnesota Chippewa Tribe asking for assistance in getting my adoption records from the state. So a letter went to the Minnesota Department of Human Services and I'm going to read a little bit about this. ‘The Minnesota Chippewa Tribe branch of Tribal Operations is inquiring of the circumstances of the adoption of...' and then it lists the four Locke children and it's signed by Brian Brunelle, Director of Administration for the Minnesota Chippewa Tribe. And that was followed by an affidavit dated December 23, 2009 from a Jamie Lee with the Department of Human Services at the state and she's responsible for maintaining the adoption records and in this document, in this affidavit she ensured everybody that I was indeed adopted. Here's the date I was adopted, when it was finalized, here's the case number and my name was changed from whatever to Deborah Locke on this date.

Also within these papers that the tribe had was a resolution from the Minnesota Chippewa Tribe dated 1978 wherein I and my brothers and sisters were enrolled with the Band. We were enrolled with the Band because my uncle, Peter DeFoe, Sr., had gone to my mother one day and said, ‘You should have the children enrolled. They're all Indian. They're my nieces and my nephews. I recognize them as such and they should be enrolled.' And mom said, ‘All right.' So she went through with it and apparently that went without a hitch. All I know is that one day in my 20s I was told that I was enrolled. Well, I thought that was pretty cool, but I didn't really fully understand it quite honestly.

You might wonder, where did this all start at Fond du Lac? And from what I can tell it began maybe at least five years earlier, maybe longer, with a family that had adopted two non-Indian children. The woman, Roberta Smith Poloski was a Band member. Her husband was not. He's not American Indian. And they adopted these two girls and had them enrolled in 1982 and there were Band members who very much resented that. The little girls grew up with their Indian relatives, identified with American Indian culture, and were pretty much accepted as far as I knew. We were good friends with them; they lived just down the street.

So the Poloski girls were later identified as non-Indians with Band benefits and there were complaints about that that were registered with the RBC [Reservation Business Committee] starting again minimally five years before this and it might have even been 10 years. I can...I'll read this to you, this is the RBC open meeting minutes from the Brookston Community Center dated November 19, 2009.

Geraldine Savage asked, ‘What is going on with the disenrollment issue?'

Chairman Karen Diver said, ‘There has been a hearing and we're just waiting to hear on the judge's decision.'

Ms. Savage asked, ‘Why is the RBC waiting for the judge to decide?'

Mr. Ferdinand Martineau said, ‘We are following the ordinance that was done in 1988.'

Ms. Savage said, ‘It should be the RBC making the decision.'

Mr. Martineau said, ‘This is the way the ordinance is set up.'

Ms. Joyce LaPorte asked if this is going to cause a backlash.

Mr. Ferdinand Martineau said, ‘It may.'

Mr. Martineau said, ‘The individuals were enrolled under a different council.'

Ms. Geraldine Savage asked, ‘How long will it take for a decision?'

Mr. Martineau said, ‘The enrollment issue should have been easy to decide.'

Mr. Martineau said, ‘Conflict would come if the tribal court said to leave them enrolled.'

Ms. Savage said, ‘This would be a conflict then.'

Mr. Martino said, ‘But we have brothers and sisters and some of them are enrolled and some of them are not enrolled.'

Ms. Nancy Sepala asked if we are going to lose Band members because of the blood quantums.

That last question was never addressed. They went on to talk about elderly housing. I think that last question is really a key one, and that was a question that a lot more people than Ms. Nancy Sepala was wondering at that time. What would be the ultimate outcome of these disenrollments that we're starting?

So anyway, the Poloski girls had their day in court and the tribal judge ruled against them. They decided to come down to St. Paul and present their arguments to the Court of Appeals, the Minnesota Chippewa Tribe Court of Appeals, and that court gave them a decision dated March 30, 2010 that said, ‘We affirm the Fond du Lac Tribal Court decision and their justification was that all children of at least one-quarter degree Minnesota Chippewa Indian blood born after July 3, 1961 to a member...' and then there's that language. So apparently the girls didn't fill that criteria. And then there's reference to the fact that ‘the constitution is unambiguous and that the children must possess a direct biological link to members of the tribe and that at least one-quarter of the applicant's biological lineage must trace to Minnesota Chippewa Indians. Applying this clear requirement to the facts at issue in the appeal is a straightforward task, but it's a task that we do with sadness.'

So Renee and Robin were disenrolled and they complained to the RBC that there were other people who were still enrolled who were also adopted including those Locke kids who were just down the street. And so the RBC took that charge pretty seriously and started its investigation, and I've just read to you some of the documentation that they were working with. What happened to me? Well, after that very fateful day when I received the letter, I was working as their editor and I went to work and made a couple of calls and discovered that not everybody agreed that that disenrollment action was a good idea and that made me feel pretty good. In fact, there were a few people who were rather upset at the Fond du Lac Band when the news of this got out. I don't think it was a groundswell. I don't think that...nothing like that happened, but there were a few key people who mean something to me who didn't like what happened and they had some good advice, including names of attorneys throughout the state who I should contact to get some advice from and so I did. I made phone calls and discovered that I should request a petition date. I'm sorry I'm not a lawyer, I can't get into too many of the legalities, but I do know that it wasn't long after that before we did set...we sent documentation and asked for a hearing. And then I had to wait quite awhile before that hearing date actually came up.

But in the meantime, again I was in this odd rather limbo-like state. I knew some details of my adoption. I knew that my biological mother was from Turtle Mountain. I had seen documentation from the county, St. Louis County, which said that my...the name of my father had never been released. There was no reason for us to presume he was not Fund du Lac. The only description and information I ever learned about my father was that he was tall and he liked to hunt and fish. Well, now that covers about 98 percent of the men at Fond du Lac, although not all of them are that tall, but there could be a tall one out there somewhere. So they all like to hunt and fish and he was athletic, so that was all very interesting, but it didn't tell me a whole lot. It didn't tell me whether or not he was in fact a Band member.

What happened from there is this. I was urged to find an attorney, I couldn't. I called everywhere I could think of to get someone to take the case. Finally, Tim Aldridge did and he was an attorney at Bemidji all the time, had done some work for a couple of bands and Tim agreed to take on the case. The reason these lawyers said 'no' was because there was no precedent. They didn't know what they were getting into and they weren't quite sure how to win it. I'm sure the list goes on and on and on. But my mother went into her savings to pay for the retainer, which absolutely broke my heart, but I didn't have many choices at the time and I think this is true of a lot of people who are included with me. What I heard is from 20 to 40 people at Fond du Lac got that letter and I was the first one to go through with a trial or a court hearing, which says that I was the only one who paid the money that it required. That's an advantage tribal courts have. They know that the people who they represent often don't have the money to pay for an attorney. I think that's one of the worst tragedies of this story.

Anyway, I went ahead, I had this great lawyer and when we got the hearing date, he and a couple of other...quite a few people were sort of involved with this and giving me various kinds of advice. They put together a summons and complaint and I filed it and things were quiet for awhile and then we had our...and I hired the attorney and we had our initial hearing. That went okay. I'm not even quite sure...that was just to see what information...discovery, that was discovery. And then we set the date or the hearing date in the tribal court offices or the tribal courtroom, whatever that's called. And I argued that or my attorney argued with me a number of things and here's what I can tell you from the complaint.

He cited the Indian Civil Rights Act and he said that that states that, ‘No Indian tribe in exercising powers of self-government shall deny to any person within this jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.' Again you're wondering, property, yeah, that little $400 a month payment that I was getting was very useful. That was cut off with absolutely no notice whatsoever. That's just the beginning of what was cut off. I was informed of a -- this goes on -- now this is my voice. ‘I was informed of a pre-hearing conference set for May 18, 2010, but have not received the documents that will be used against me. I request...' and here's B, ‘I request the honorable court to scrutinize the purpose of the disenrollment attempt as to procedural and substantive due process. The January 6th letter sets forth vague information that an adoption is used as the basis for the disenrollment. I may be entitled to enrollment apart from the adoption allegation moreover admitting tribes have the right to determine membership.' Those were the two strongest arguments I think from this document. It also says, ‘My specific allegations alleging lack of due process justifying injunctive relief are as follows...' I was told and I remember this phone call, I was told in a telephone call by a court employee that I would only be allowed to look at the evidence against me at the time of the hearing without prior notice of what may be used against me and B, the pre-trial hearing was set prematurely without a scheduling hearing, a discovery period and without adequate time to be allowed for me to prepare a meaningful case based on the merits. Defendants failed to give a fair warning of the nature of the case. This goes on for maybe another couple of pages. It's signed and dated May 17, 2010.

So, we waited again and it wasn't until I'm thinking, yeah, by late December I was really wondering when are we going to be getting some sort of a decision from the judge and an order arrived or was sent to my attorney on January 22, 2011 and it said this, it said, ‘The issue was whether the petitioner met the tribe's membership requirements when the decision to enroll was first made.' In other words, did that initial RBC and did the officials with MCT just make a simple mistake back in 1978 when they permitted this to go through. And the judge's order also said this, ‘Petitioner's request for hearing did not set out the reason she believed she should not be disenrolled, but stated that she understood the fact that she was adopted was the reason for her disenrollment. She requested documents leading to the decision to proceed with the disenrollment.' The order also said that I provided a document from my biological mother that showed I had enough Indian blood to be enrolled and it also said the Band argued that an enrolled adoptee must be born to a member of the MCT. The judge also referred to the letter from the St. Louis County Adoptive Services that stated my biological parents were each American Indian and although the judge did say the document named my father, it didn't. His name...that name has never surfaced. The order says that, ‘Though I am perhaps of Chippewa descent...' That's the word she used -- 'perhaps.' ‘Perhaps she's of Chippewa descent, it's not enough information to conclude that I met the requirement of MCT membership.' And consequently the disenrollment was approved.

So I received that information, my attorney and I talked a little bit about it. I talked with these other attorneys who had been involved and they all said that, ‘You cannot give up at this point. You have to appeal this. You've got to go to St. Paul to Bandana Square and talk to these judges,' and that means of course I need to hire another attorney because by this time Tim Aldridge had left his practice in Bemidji. I thought, ‘What's this going to take? I have to go to my mother again and borrow from her savings for what may be another losing case and I have to try and find an attorney, most of whom don't even want to come anywhere near me. And what else do I have to...I have to get up in the morning for how many months ahead, each morning, and deal with this thing.' I cannot even begin to describe how this weighs on a person. I can't even tell you how it just turns you upside down, not only me, my siblings, my mom who was elderly to begin with, my extended family and friends. And I didn't realize how much it had affected them until I had heard a rumor through my brother that we were suddenly all to be reinstated. And I told one of my friends whose husband is a Band member and she started crying and so I realized that this is something that is really touching a lot of people in a lot of different ways.

What I heard from one of the attorneys is this, he said, ‘Membership is a right. If you are born to an MCT parent...' and no one proved that Deb was not born to an MCT parent... ‘Fond du Lac and MCT shifted the burden of proof to me after more than 30 years following an open enrollment process.' Those were the words I heard from one of the attorneys. In the meantime, personally what was going on, my youngest brother David has Fetal Alcohol Syndrome. He is living in Tucson right now. He has been for quite a few years. The $400...he cannot work. He can't. He has a...he's got a disability that will not permit him to function very well. He's about 12 or 13 years old emotionally and in every other way. So he's in Tucson and he gets the same letter that I did. He goes to my mother and he's crying on the phone. He's already torn up his ID and all of his papers and anything that ever had anything to do with Fond du Lac. He's very distressed about this thing and my mom of course is very distressed about it and what are we going to do about David now -- because that piece...that puny little $400 a month was basically all he had and some food stamps. So my mom and I started paying his bills that year and he's...my heart goes out to him because he lives in like this world of confusion. There's so much he doesn't understand and it is not his fault that he doesn't understand it. Anyway, in December of 2010, David got a letter that he would receive a check for $4,800, which is a year of casino dividend payments. The letter said he was getting a lump sum because he filled the annual dividend form incorrectly in January. He never got one. What he got in January was the same letter that I got. I reminded my brother that I got the same letter he did in January a year earlier about disenrollment proceedings.

So where does this leave us and where does it leave me? It leaves me with a lot of confusion about what I call 'cultural competency,' because in the course of that year and a half of trauma, one of the first things I was told was that in Ojibwe history and culture adoptees have the same status as biological children, that it had been that way for hundreds of years and that you truly were a chosen baby. I was also told that the tradition of adoption...that adoption meant that children were called to the Band for a very special role and that included the Poloski girls, excuse me, but it did. The Poloski girls as well as me and my three siblings all fell under that blanket. For some special reason, the Creator placed us with this Band. We were babies, we didn't have much say about it, but that's what happened and what I learned from these attorneys, who actually were culturally competent and kindhearted and everything else you would look for in an attorney, and I'd never met people like this in my life, but wow they were good. Anyway, a sidebar.

What I had hoped for through this proceeding and somewhere buried in the Minnesota Chippewa Tribe constitution was something that said that traditions matter and that the fate of children matters and that when you get to be in your 50s and 60s, people don't pull the rug out from under you the way they pulled the rug out from under me and my family. My mother had a good solution early on. She said, ‘If the Band wanted to change something, they could have grandfathered all of you in and said, 'From this point forward this is the way it's going to be.'' And I think that would have been a good solution, but of course they didn't think of that. It was just too easy to say, ‘Well, maybe Renee or Robin are making a point.' I don't even...I can't even speculate where they were coming from on that. I don't... was it a cost savings? I don't think it was that great a cost savings, 20 to 40 people. I still see myself as a 'chosen child' and I really wish the Fond du Lac Band was Ojibwe enough to understand what that means. Thank you."

Shawn Frank: Disenrollment: Considerations of Process

William Mitchell College of Law

Attorney Shawn Frank stresses the importance of Native nations ensuring that they establish and operate processes for disenrolling their citizens that is fair and transparent. He also offers some strategies that a Native nation can follow in order to create that fairness and transparency -- and importantly due process -- for those who the nation seeks to disenroll. 

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Native Nations
Resource Type

Frank, Shawn. "Disenrollment: Considerations of Process." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"I'm Shawn Frank. I'm an attorney here in town and I've worked with a number of tribes on a variety of membership issues, one of them being disenrollment. And so I'm just kind of here to provide a legal perspective and kind of to talk a little bit about my experience in the area, but also to kind of talk about the process of disenrollment and if a tribe were to go down that road, kind of some of the things that I think are important for a tribe to consider in pursuing disenrollment.

As probably a lot of people have seen in the news recently and going back a good 10 years, the trend of disenrollments in tribes is on the increase. The first...one of the first big disenrollment efforts was in California with the Pechanga Band and there are tribes in California, Nevada, just recently Washington...at the Nooksack Tribe, began a series of disenrollments, Michigan, and those are ones that have had some prominence because of the number, but I think a lot of tribes have at various points undertaken some of these actions. When you start looking at some of the numbers and some of the statistics on there, some of the tribes in California have disenrolled almost about half of the membership and then the question arises is, what is driving the tribes to do this? And you usually hear one of two answers.

One is the tribe's perspective, that as a sovereign it has a responsibility to maintain a proper tribal roll and it has the authority to determine membership and it needs to enforce those requirements. On the member side, a lot of times it's seen as longstanding family animus or some sort of witch hunt against a family group or opposition or that if there are fewer members, especially if it's a profitable tribe, if there are fewer members, then everyone else's distributions go up and the membership numbers go down. And all of that aside, the Supreme Court has held fast that tribes determine their own membership and in determining that membership also comes the authority to revoke membership, to...you can grant membership, deny it, revoke it or put conditions on it.

So kind of from the legal perspective, the issue of can tribes disenroll is generally an emphatic, 'Yes, tribes can.' And so there's not a huge, I think, legal analysis that goes in there. Of course, every tribe has its own specific constitution and its own rules. There are tribes that...there was a tribe I think in California that before it even began its development of a casino project, it amended the constitution to prohibit the disenrollment of members so they had actually put in a safeguard even before it got to the stage where this issue could have arisen. There are a few other tribes that have some provisions or a tribe's ability to disenroll either by the constitution or the court's interpretation of the tribe's constitution limits it to cases of fraud or mistake. So there are certain limits that tribes do have, but it's limits that they have placed on themselves.

So what I'd like to kind of talk about is the process that I have seen that has worked I guess for some tribes and one of the things I was struck in Deb's [Deborah Locke's] presentation was when she was talking about the process that was due and I think that's such a fundamental issue. And I guess before I get into that, as an attorney representing tribes, the tribes are my client and it's a decision that the tribe makes to pursue these proceedings and it's a hot-button issue and there are a lot of strong feelings about it. So when I'm talking about having a fair process, it's not necessarily saying that a tribe's decision to do...to go down that road or not is something I would support, but representing the tribe, if they've asked me to help them enforce their constitution or to follow through on an action that they believe is lawful then I have an obligation to that client. So from my perspective it's kind of this...sometimes it's an uneasy practice, so when I talk about what things have worked for tribes, I mean what things tribes can do to provide members with enough opportunity to be part of the process before decisions are made.

So one of the things that I think tribes have grappled with is what is actually in their constitution, not only in terms of what is the membership criteria, but also who has the power or does the tribe even have the power to disenroll? I've seen arguments that have said the constitution doesn't include that so the council doesn't have that authority. And if it's a tribe where a lot of the power rests with either membership -- or sometimes it's called the general council -- or that...and it hasn't been delegated specifically to the council or the business committee, does the power of disenrolling or of disenrollment actually lie with the general membership? I haven't seen an instance where it lies with the general membership, but I'm not sure that that issue has been raised in some of these areas and generally it is the [tribal] council who has taken on the decision and the process to begin looking into these sorts of things.

One of the things that I think is really important is -- and some of this is my personal view -- is people have secured membership with the tribe and that has certain rights that come along with it and I think one of those rights is to be secure in that membership. And one of the things that I have seen on occasion is where members are not allowed the opportunity to have the evidence brought to them that what is the tribe's case, why is the tribe doing this, what documents does the tribe have? And sometimes there's an attempt to subvert whose burden it is to prove this. And one of the things, I think, if a tribe is going to establish a process is that the tribe needs to take the responsibility to A, make sure that it has its supporting documents.

There's been...I think there was...was it the Graton Rancheria in California, where literally one day people got a letter in the mail that said, 'You've been disenrolled.' So there was no...there was no warning, there was no opportunity. So what I've seen some tribes do is -- whether it's the council, an enrollment department, a separate board or panel -- will gather kind of the evidence and make a determination whether or not to begin a disenrollment proceeding. And so even at that really preliminary stage, they've shared that information with the member and given the member an opportunity to submit information that they have to kind of help clear that before they even begin the process. And sometimes some of these things are resolved at that stage, but occasionally the tribe will move forward and actually begin, in some instances, begin a disenrollment proceeding. Like I noted, sometimes the tribe just sit down and they just vote and say, 'You've been disenrolled.' So I think in terms of providing a process for the members to submit their evidence to really fight for their membership...because a lot of times the tribe's information could be wrong or it's incomplete, and so sometimes I think having that initial dialogue before the process or a proceeding begins is really helpful.

One thing I've also seen in some of these proceedings is if there is a hearing, I've seen instances where members are not allowed to have...be represented by counsel, where there were no outside people allowed in the proceeding, there was no recording of the proceeding, they weren't allowed to see the tribe's evidence, they weren't allowed to submit anything additional at the hearing. So there were a number of things, and I don't think you need to be a lawyer to realize that there's a big problem with having due process and meeting those sorts of requirements. So I think if a tribe has a process where it is going to conduct disenrollment proceedings that it should provide as many safeguards to the member as possible. I'm also aware of a tribe that -- in addition to being able to have a hearing where you get to submit evidence -- you get to call witnesses, you can ask the tribe for its evidence so you have some discovery rights, you can be represented -- I forgot where that was going -- but to have built in enough safeguards to allow the person to present their case so that it's not done in a vacuum and it creates a little more openness and transparency to the proceeding. And I think when you read a lot of media accounts of some of these things, that is usually the thrust of the article is that it's based on greed, they just want people off and nobody got a fair shake. The first two things I don't think lawyers or the tribes can deal with, but at least providing notice of a hearing and adequate safeguards at least prevents that perception from continuing that the tribe has not operated in an open manner.

And I think kind of one of the things when I was talking with Colette [Routel] about coming and doing this was from a legal perspective that's one issue, but then when you talk about the moral imperative that tribes have from a cultural component, it's kind of hard to, I think, kind of sit up here from a legal perspective and just kind of try to put disenrollment in a vacuum because there is such a human element. And one thing I also think that is critical is the more independent the fact finder can be, that it isn't the tribal council, that it's not the enrollment director, that it may be a panel of elders, it could be an independent person. I know one tribe that actually has an administrative process where they have law trained judges who evaluate the evidence based on the tribe's constitution and the membership criteria and they're the ones who make the decision, it ultimately goes back to the tribe but that has set in part an administrative record so when the court reviews it, there's actually a lot more information and a lot more process and I think that has allowed the tribe to document that to show that this isn't happening in a vacuum, this isn't a secret star chamber. These proceedings are open and although they may be...people may question why the tribe is doing them, at least the tribe has taken the steps it needs to kind of protect itself.

Kind of moving through the process, I guess one of the ultimate things is ultimately who is the decision maker and one of the things I've heard people talk about is, 'Well, if the council makes the decision, what recourse do I have?' And sometimes there is nowhere else to go, if the council has made its decision then that's the last step. And a lot of people have talked about, 'Well, there should be some sort of court review after that where the court actually will end up making the determination.' And one of the things I've always been struck by that is if the council is charged with ensuring a proper membership, but it's ultimately the judge or the judiciary who's making that decision, does that somehow run afoul of where the authorities in the constitution lie? And so sometimes I think the tribes' constitutions actually set up a process where there probably can't be judicial review because then ultimately the constitutional authority is being exercised by somebody that it wasn't intended to be and I've seen that a lot of times ultimately too in, especially in gaming regulation where you have licensing decisions being made by gaming commissions who are charged with regulating, but then they're challenged to the court and it's ultimately the court who's making the determination of license and eligibility, but they're not the regulator. So it kind of creates this strange dichotomy of, you want more review and you want process, but sometimes that's not possible.

And I think just in closing it's such a divisive issue and each tribe is unique and its history is unique and devising a process to review membership decisions...I think each tribe has the ability to craft whatever they would like, but at a minimum, I think that there'd need to be certain safeguards for the members and it's not a one-size-fits-all approach. So I look forward to questions here when we have the time. I'm sure there will be a few and I would like to turn it over to Sharon [Day]."

Lenor Scheffler: The Lower Sioux Indian Community's Approach to Citizenship

William Mitchell College of Law

Lawyer Lenor Scheffler (Lower Sioux Indian Community) provides an overview of the Lower Sioux Indian Community's approach to defining citizenship, which is predicated on residency within the Lower Sioux reservation's boundaries. She also discusses how eligibility for tribal social services is tied to residency. 

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Resource Type

Scheffler, Lenor. "The Lower Sioux Indian Community's Approach to Citizenship." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Colette Routel:

"Good afternoon everyone. My name is Colette Routel and I'm also one of the co-organizers of this conference along with Sarah Deer. I teach at William Mitchell College of Law. For our afternoon, we're getting started with a panel on other citizenship requirements. After spending the morning talking about the choice between lineal descendency or blood quantum, we now have two speakers that are talking about things such as residency requirements, tiers of citizenship and adoption. I'd like to call up now the two speakers, Lenor Scheffler and Sarah Deer.

Once again, their full bios are in the program, but I would like to highlight just a little bit about each one of them. Lenor Scheffler, who's sitting here to my immediate left, is a partner at Best & Flanagan, where she runs their Indian law practice. She's a member of the Lower Sioux community and she was born near Morton, Minnesota. She is a 1988 graduate of William Mitchell College of Law. She's actually on our school's board of trustees, and she was the first Mdewakanton attorney that we know of anywhere in the United States. After she left William Mitchell, she began her private law practice and like I said she works at Best & Flanagan, which is one of the larger law firms in downtown Minneapolis. She's been very active in the Minnesota American Indian Bar Association and there's a list of her long accolades as well, too, in the bio.

Next to her is Sarah Deer, who you've all heard from this morning. Sarah is a citizen of the Creek Nation in Oklahoma. She's been teaching at William Mitchell College of Law since 2009 and before that she worked for the Tribal Law and Policy Institute and for USDOJ [U.S. Department of Justice] doing grant work for them. Sarah's main area of expertise is actually on violence against women. She was instrumental in helping Congress draft and get passed both the Tribal Law and Order Act in 2010 and then the reauthorization of the Violence Against Women Act much more recently. Sarah's going to talk about her recent scholarship on her own tribe and their constitutional revision process. I'll turn it over to them. Thanks."

Lenor Scheffler:

"Thank you. Good afternoon everyone. Good to see you. Hopefully the food was good and you'll stay awake. If not, we'll have to jump up and down or something. [Lakota language]. I wish you a good day. Glad to be here with you. I am going to talk a little bit about my experience and I have a councilman here who can correct me if my information's a little off. But Gary Prescott, one of our councilmen at Lower Sioux, I'm proud to have him on our council and here today. At Lower Sioux, we rely on a residency requirement and so I'll be talking about that, but generally I just wanted to make a couple comments.

In my practice, which I've been working in Indian Country now it'll be 20 years next year, which is like, 'How did that happen?' And when I work with my tribal clients and they're talking about constitutional reform, the one issue that is the...or the biggest issue of stumbling block after things like land and jurisdiction maybe, but is membership. How do we define who we are as a tribal person, as a First Nation person? Everybody -- depending on whether you were born on the reservation, off the reservation, depending on your age and how much blood you have, your background, your experience -- everything comes together about how you define yourself individually as a tribal member of your particular tribal nation and also how your tribe looks at you and how the outside world majority society looks at us. So it's very complicated, confusing, emotional, challenging -- all of the above -- and so I'm really glad that there's this conference where we can have some discussions and conversation and hopefully you've been able to share some good ideas about this very important topic.

The Lower Sioux, when I was born, under our constitution, which was an Indian Reorganization Act constitution, you had to be born to a member who resided on the reservation and you had to be able to identify your descendency from the 1886 rolls. And so when I was born, my mom lived on the reservation and we can trace our ancestry back to 1886 and beyond. But then, over time our lives have changed, chunks of us have moved away. One of my other councilmen told me that we have approximately over 1,000 now members at Lower Sioux and there's a certain number that live on the reservation, and we also have a service area that we identify or recognize so many miles outside the reservation, and we have then also large numbers of our tribal members who live outside even that service area. And our membership ordinance has privileges and...membership and privileges. I can't remember the exact title now. I should have looked at it before I came here. But residency...if you're a resident of Lower Sioux or in the service area, and in this case now it's up to five years, then you are eligible for certain privileges that are set out in the ordinance and if you have...if I would choose to move back -- which was one of my desires was to retire at Lower Sioux -- I would have to establish residency and there may be some other, if I recall, some other categories. But when you have those privileges, those include the health benefits, the voting, the land assignments, those sorts of things, because our constitution also says when you get a land assignment or a land lease, you have to develop it and reside there and if you abandon it for a certain number of years, then you have to relinquish it back to the community.

So it's been a very interesting experience in my lifetime to watch my community. We all knew who each other was even though, as you know, when our censuses were made by the United States government over the years they were not always accurate and we knew who actually was the child of that couple or who the real mother was and we also know there are examples that people happened to be visiting Prairie Island when they took the census and so a Yankton person might be counted as a Prairie Island person. So we know there are flaws in the records that the government has provided saying who we are in each of our communities, but we as tribal people, we know exactly who our people are, in my opinion. That's my personal opinion.

And so watching at Lower Sioux...and most of us at one point stayed there. Some people left for jobs, some people left for education because there wasn't much there. What I remember is the gravel pit and the gravel roads when I was a kid and then it changed and we had gaming and that brought a whole different experience. I think of our...my childhood as rather idyllic and sheltered living on the reservation. It wasn't perfect, but it was pretty wonderful in my mind and a great place to be, but I knew I had to leave and others made those choices. To watch going from everyone being included, everyone knowing each other to having the influx of workers and relatives who grew up in the Twin Cities or relatives who grew up in other parts of the country because of relocation, people coming back because they're retiring, people are wanting to come back, our community changed. And as those things changed, choices were made about, 'How do we define ourselves?' And as a lawyer, I will defend a tribe's sovereign right to say who their citizens are. And I've also seen when that sword of sovereignty cuts the other way and people are disenrolled or people are harmed by what I would defend as a lawyer, but as a tribal person may have other opinions.

So over the years, our tribe has made choices. How do we account for the people coming back? How do we account for the people who have been here on the reservation their whole life? So we have some benefits. How do we share those benefits and how do we weigh those values and choices that people have made and how do we...because in our Dakota, Lakota, Nakota we are all related. We want to be a relative, we want to live among our relatives and so how do we make choices when we are all related? And so I think it's not been easy for my tribal people to make those choices and sometimes it was in a good way and sometimes it may have been a challenging way, but I believe that they did the best and they do make the best decisions they can.

So residency has been something...it really has helped the members who live there, who choose to live there, who may not be able to leave. The benefits that come with residency makes great sense. I don't mind it that I don't have the benefits, but I...what's so important to me is that I am a member, that I have roots, that that is my home, that is where I come from. So regardless of what label somebody puts on me or says what I get or don't get, I'm individually a person, it doesn't matter. My parents taught my sisters and I that education was everything and to work hard so that we could take care of ourselves whatever we did or wherever we were because my dad said, "˜You're a woman, you're a minority, and the only thing people can't take away from you is your education.' And so we made different choices and so residency to me individually is not as important, but I have other relatives who have retired, my aunts and uncles for example, and it's been very nice because they've not necessarily had 401Ks in their lives where they've lived. I have one uncle who lived in Oregon for most of his life on the Warm Springs Reservation, another auntie who lived off the reservation, and it's been nice to see them to come home with what little retirement they do have, but they get some privileges now and in their old age they have a place to be and to connect and so I think that has great value.

So residence...and it just depends on your opinion, because I also have had my dissident period, I will admit, in the "˜90s, and...where there was about 200 we counted of members of Lower Sioux and descendents and came together and some of us wanted just to be able to vote whether we lived on or off the reservation and others wanted to be able to take advantage of the privileges that were happening at that time -- per capita and other benefits -- regardless of whether you lived on or off the reservation. And so ultimately there was actually a lawsuit. A number of us just dropped out because I wasn't that dissident-like. I don't shake up things that much so we dropped off, but others...actually a case went to the Eighth Circuit, the Maxim case, about privileges and benefits and caused some changes. So it's been an experience that it just depends on where you're sitting as to whether having a residency requirement for the benefits is a challenge or not. But to me the most important is that is...the important thing is that that is where I'm from and where my family's from -- Prairie Island is actually where my grandmother and my great grandmother and Santee is where my grandfather, great grandfather is from -- so it's that connection in place that seems to me most important.

The tiers of citizenship, I've heard of that and maybe that is an option because it is such a hard question to decide who gets to be in and who gets to be out. I have clients who are full blood from other tribes and they say, "˜I do not...,' the chairman of one of my clients from Wisconsin said, "˜I do not want to sit at a council meeting some day and look at the next chairman and he's got blonde and blue eyes. That makes me crazy.' Or I talk to my friends at Prairie Island, my relatives at Prairie Island and they have...they have some descendency and they do have folks that don't necessarily look like majority society says all of us Indians should look like. So I guess my comments are just to give examples and a perspective that, be thoughtful about how you define yourself and find a way...we...gosh, people, we have survived since time immemorial, we should be able to figure out this citizenship piece. We put our heads together, we be relatives with each other and to each other. It seems to me we should be able to figure this out. We can survive this long...I don't believe that we will all waste away because of how we define our citizenship. I think we will figure out a way to do it, but I think it just takes effort and respecting your past, respecting your values, talking to each other and listening to each other and then having the courage to make a decision and then live with that decision and work with it. I think that's another thing maybe...because of all my tribal judge work in my lifetime, too, I'm not afraid of making a decision and just dealing with it, but I think that's what our people have done.

I did a law review article through William Mitchell Law Review in 2012, my perspective on the 1862 uprising or conflict or war -- whatever you want to call it -- and I focused on membership and the challenges that we as Dakota in 1862 faced because we had our people who were already assimilating, cutting their hair, wearing majority society clothes, sitting in wood houses and trying to farm and assimilate, and yet we had our people who were saying, "˜No, we are going to hold on to our traditions and we shouldn't have to do this and we should be able to be who we are.' And contrast those experiences and the complexity of those relationships not only with the United States government and majority society but among ourselves. I contrasted that to a lawsuit that was called Wolf Child v. United States, which was a trust case that had been around for the last almost 10 years now and that was a case again about trust responsibility and a group of plaintiffs having lawyers and they were from our community, Lower Sioux, and saying the government had a trust responsibility to these 1886 descendents, those "friendly" Dakota which is a good and bad term: you either 'hang around the fort Indians' or whatever you wanted to call those folks. And so the case was talking about that issue and whether those descendents...that we should have the benefits that come from those 1886 lands, those lands that were set aside by the federal government for those friendly Mdewakanton Dakota.

And so I contrasted what was happening in 1862 and what was happening with this lawsuit, because that lawsuit brought out the best of us and the worst of us in that having to show your descendency caused people to reconnect with their roots, find out where did great grandma...where was she baptized, was she baptized, where was she born, trying to show that you were descended from those friendly Dakota. But it also divided families that, 'This isn't right, we shouldn't do this litigation.' I'm not a litigator and so I have a theory that litigation gets us nowhere usually, but it does sometimes. But I don't like litigation. You don't have control over what's happening or what the decision's going to be. And so that litigation also, I think, divided us because some families...people who had been in exile from 1862 went to Canada or other parts of the U.S. saying, "˜We want to come back, we want to have land, we want to be members in our communities from where we were born...where we descended from.' And so those...that was dividing in similar ways in my mind as what was happening in 1862. But unfortunately, at this ripe age of, my membership card probably says I'm an elder now, but and after 20 years of practicing law I still don't have an answer about the citizenship and what we can do about it or to take care of or resolve some of those issues from 1862 to today except that the faith that I have in our people and what we've learned and the hope that we can keep moving forward. So those are my perspectives." 

Stephen Cornell: Creating Citizens: A Fundamental Nation-Rebuilding Challenge

William Mitchell College of Law in conjunction with the Bush Foundation

NNI Faculty Associate Stephen Cornell discusses how colonial policies have distorted and corrupted Native nations' conceptions of identity, citizenship and nationhood, and stresses the need for Native nations to forge a strategic vision of their long-term futures and then work to create among their people "citizens' committed to and capable of creating those futures.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Resource Type

Cornell, Stephen. "Creating Citizens: A Fundamental Nation-Rebuilding Challenge." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"Well, thank you all for being here. And I want in particular to thank the Bush Foundation and the School of Law, the Mitchell School of Law for putting this together and also acknowledge the first peoples of this piece of country, this piece of this magnificent continent. [I see I'm not yet quite there.]

I have found the discussion we've had already very interesting and I think it's unfortunate what's happened to this discussion of citizenship. And I think Bethany [Berger] did a really nice job of showing us the intrusion of outsiders' ideas of what citizenship should be and mean and the way that that has come to dominate the discussion of citizenship so that you -- whose citizenship and lives are at stake -- end up talking about blood quantum and other criteria which I don't think were ever -- as John [Borrows] has really shown -- were ever part of the way you thought about who you are. But that now dominates the discussion and the intrusion of the notion of boundaries. Gee, you either are or you aren't part of a people. How do we know? Because I went to court and the judge said. Is that really the way things should be? And then the counter to that intrusion and that transformation, that demand that you think about who you are in a particular way, then John presented a very different notion of citizenship as an expression of who you are as a people, of what kind of people you want to be. Not just what kind of people you were, what do you want to be? And that's a very different discussion, and I think it's unfortunate that a lot of the discussion of citizenship now is really bogged down in that first set of ideas and it needs to move to that second set that John really articulated for us. That said, my job, I was asked to...I want to do a couple of things here. I want to say something about what's happening across Indian Country in this area, and that's going to be just exactly the sort of criteria that have unfortunately come to dominate this discussion. And I want to say a little bit about some of the issues to think about as you wrestle with those criteria, but then I want to...I want to come back to what I think is important and that's something I'll talk about called 'creating citizens.'

So I'm going to give you some data. And unfortunately, this podium is beautifully placed so that half of you can't even see this and probably the other half can't read it because it's too small. But this is some of the citizenship criteria in Native nations. Now it turns out it's not easy to get a comprehensive view, maybe Matthew Fletcher or someone else knows of a place where you can find out all of these criteria. The best source I've come across was actually work done by Keith Richotte back in about 2007, when he went through a lot of tribal constitutions to track what they say about citizenship and how that's changed as constitutions changed. Tracked really some of the processes that you all are involved in and the point of this chart is really just to show you that today it's incredibly diverse out there from various kinds of blood quantum and what I've done is give you the criteria on the left and some examples of nations within the U.S. who are using those criteria or some version of them. And that list down the left, which matters much more than the examples begins -- for those of you who can't quite see it -- blood quantum; lineal descent from a base tribal roll; lineal descent and blood quantum in some sort of combination. We've got lineal descent and residency, that is, you have to show lineal descent and either your or your parents had to be a resident; a minimum percent of tribal or Indian descent–Bay Mills sets a percentage and says this is what you need to be a citizen; patrilineal descent; matrilineal descent; parental tribal residence at birth, that you don't see as much anymore, but there's still some nations that use that; participation in tribal affairs. I actually thought that was kind of an interesting one. Colville: you want to be a citizen, you better be involved, be engaged. Council discretion: Hey, we'll make up our minds, decide whether you are or not. General council discretion: open to a much larger body of already recognized citizens to decide. Comanche has special rules for minors. Nez Perce, Warm Springs allowing for adoption and naturalization.

In other words, there's a very diverse set of criteria currently existing out there. Which ones are the most common? Well, most include descent from a tribal member or citizen. Some include no further requirement. About 25 percent of tribes according to what Keith Richotte, Carole Goldberg, Ian Record, and others have been able to come up with, about 25 percent of tribes in the U.S. require descent from a tribal member, period. Parental tribal residence at birth still is a fairly large number, about 20 percent. One-quarter blood quantum is over 20 percent. One-half blood quantum less than 10 percent today. A quarter-blood quantum plus parental residence at birth less than five percent. One-eighth blood quantum, one sixteenth -- there are other criteria involved but the percentages get much, much less. They are getting rare. So while there's enormous diversity out there, there are dominate patterns and these are the things you see. What's the pattern of change, emerging trends? Reducing blood quantum, everyone's wrestling with the intermarriage question. If my nation requires one-half blood quantum, it's not going to take more than a generation or two before my children -- unless I marry someone else who is also a citizen of my nation by that criterion, or ideally someone who's full blood -- before I can't enroll in my own children in my nation.

I was talking to an Apache...a citizen of one of the Apache nations the other day and he was saying, 'My children are Apache, but I married outside the White Mountain Apache Tribe.' I can't remember whether it was Jicarilla or San Carlos Apache or who, married another Apache but not of that tribe, and as a result, he said, 'My kids can't be enrolled in my nation. They're as Apache as I am.' That's the result of this intrusion, this creation of boundaries that slashed their way right across peoples and said, 'Okay, you've got to set some criteria and then you've got to abide by them,' and now a lot of tribes are reducing blood quantum because as the generations pass they're starting to disappear so you've got to reduce the blood quantum in order to keep people within the boundary. Replacing blood quantum with lineal descent -- that's happening at a lot of places. From tribal blood to Indian blood, that is, we require Indian blood but not necessarily tribal blood. Growing attention to off-reservation representation and how you keep people not only as citizens, but engaged as citizens off reservation.

I don't know how many of you are familiar with the Citizen Potawatomi Nation's council. They recently redid their constitution. Any citizen, enrolled Citizen Potawatomi citizen, can participate in tribal affairs whether you live in Los Angeles or in Shawnee, Oklahoma where the tribal headquarters are. Their constitution, they have I think it's a 16-seat legislature. Eight members of that legislature have to be resident in Pottawatomie County, Oklahoma and the other eight can be resident anywhere in the United States. So they do their council meetings with video screens on the wall so that the councilor in Los Angeles -- where they have an office and who was elected to the council -- can participate real-time in the debates, vote, etc. And their argument is, 'We want to keep our people part of the nation, not just by saying yes, you're a citizen, by actually engaging you in what it means to be part of the nation.'

Dual citizenship: we're also seeing some tribes saying, 'No dual citizenship.' I don't know where that one is going. Unique sets of citizenship rules, that is, Grand Traverse is breaking away from some of the general patterns and creating its own rules. And of course we're seeing some of this extremely controversial and I think extremely dangerous phenomenon of disenrollment. What we're beginning to see now in California is people who've been disenrolled demanding that the federal government step in. That's the last thing tribes need is the federal government stepping in and saying, 'Okay, we'll decide who's a citizen.' But that's what's going to happen if it keeps on because there's going to be a large enough group of disenfranchised people saying, 'Who else are we going to appeal to? We'll appeal to the feds,' and there goes some of your sovereignty because the feds say, 'Okay, we'll take over this issue.'

So those are some of the things that are going on out there. As I say, the work that Keith Richotte did is about six years old. Carole Goldberg at UCLA has done some work on this a little more recently, but it's actually very difficult to find out exactly what's happening across the country, but I think this gives you some idea of some of the things that are going on. These things have real-world effects. When you change these things, and I think this is what...for some nations, I think the move to wrestle with citizenship criteria comes from some crisis. Either we get people demanding, 'I want my children enrolled,' so okay, we better fiddle with the citizenship criteria. Or there's a court case or there's a settlement and there's fighting over the benefits of the settlement or something like that. And very often, councils are under pressure to launch some kind of rethink of citizenship criteria without really sitting down and saying, 'What are the consequences of this action across the board?' And of course, some of these things are obvious. I think there's a consequence on numbers, that's perhaps the most obvious one.

As you loosen criteria, the numbers potentially increase; as you tighten them, the numbers potentially decrease. Does that matter to you? It's certainly got impacts on things like tribal capacities. Excluding someone is excluding a body of knowledge, a body of experience. Incorporating someone is bringing in knowledge and experience. What impact does the change in citizenship criteria have on your nation's capacity to do the things it wants to do? Political influence may be affected by this and not just by numbers, but in a sense you're...how you're viewed by outsiders may be affected by changes that you make in citizenship. The defense of sovereignty -- that's part of the disenrollment issue. What impact is this likely to have if we spin out the consequences of action? What impact is this going to have down the road on our ability to control what may be one of the most important aspects of nationhood, defining who we are? That should always be in your hands, not in someone else's, but you may take actions that make it harder to defend that sovereignty.

Compliance with federal regulations: there are federal programs, for example, including programs on which some of your citizens may depend to get through the winter, to survive, to meet the needs of their kids, where the federal government imposes regulations that your citizenship criteria may come into conflict with. On the unity and social cohesion of your people, on culture, and I think on self concepts, rigid technical and legalistic criteria versus the sense in the community of what it means to be a citizen, of those things that John just talked about. And I actually think that may be the most important of all these effects: What is the impact of the decisions you make about citizenship on your people's sense of what it means to be a citizen?

John mentioned some of what's happening in New Zealand. In August, I was teaching a course at a tribal college in New Zealand and for a group of Maori working tribal professionals who are working for their tribes in New Zealand. And I was struck by the fact that a couple of people were talking about their, who I would think of as the citizens of their tribes, as beneficiaries. They were beneficiaries of settlements; settlements over land claims and claims to fish into the four shores of New Zealand. And I asked them, 'Do you all really talk about your people as beneficiaries?' And they said, 'Well, that's kind of how the New Zealand government talks about them.' And we ended up talking about, what does it mean to be part of a tribe if you think of yourself as a beneficiary? I get something. It's like listening to radio station WIIFM, What's In It For Me? I'm a beneficiary. That's a limited conception of what it means to be part of a people, and I thought a really unfortunate conception of that. We need to find a balance somewhere between citizenship as rights and benefits and about me as an individual and citizenship as obligation and contribution and participation and as an expression of this collective consciousness, this collective understanding of who you are as a people. And what you do in citizenship is going to affect both ends of that continuum, but when I heard that term 'beneficiary,' I thought, 'Well, I know where at least those few people are. They're way over at that end.' Bad place to be for the future of a people.

And I don't know how many of you know Oren Lyons. I had an interesting conversation with Oren Lyons about seven or eight years ago. Oren is a traditional faith keeper of the Onondaga and a remarkable man, one of the architects of the U.N. Declaration on Human Rights, and we were talking about this term member and Oren, I thought...He said to me, 'Tell me something.' He said, 'Are you a member of the United States? Are you a member of the State of Arizona?' He said, 'At Onondaga we're not a club. We don't have members. We're a nation. We have citizens.' And I thought that's an important change in how you think. To be a member of something, what do I get? I get the magazine, I get a discount at the store, I get all these goodies because I'm a member. But if I'm a citizen, that raises questions about what do I give, what am I part of? It's about the thing itself, the nation, rather than about this flow of benefits to me.

I think the biggest challenge is not deciding eligibility criteria. You're having to do that, you live in a political and legal context where that's demanded of you. So you have to do it and you have to be smart about it and you have to think very carefully about what the consequences are of your decisions. But I think there's a much bigger challenge in this whole area of citizenship and I call it 'creating citizens.' Do you think about what it's going to take to create the kind of citizens that your nation needs? And I think that's really a strategic question. It has to do with what kind of community or nation do you want to be 25 years from now, 50 years, seven generations, whatever the time horizon is that makes sense to your people? What kind of community do you want your grandchildren to grow up in? What kind of citizens do you want your grandchildren to be? So when I talk about creating citizens, I'm not talking about adding to the roles or increasing your numbers. I'm talking about creating that future by creating people who can live it. If you know what kind of future you want, what kind of citizens will that require? Do you know? Have you thought about that and about how you'll create those citizens? And I think of that as something that...

In the work that I, and some of my colleagues, have done, we talk a lot about nation building, or as Oren Lyons says, 'nation rebuilding,' and I actually think this business of creating citizens is a fundamental part of it and it raises this question of, do you have a plan for creating citizens? And that would include things like language, culture, ceremony. The Cherokees investing...scavenging money from tribal programs so they can get their kids into immersion classrooms where they will learn their language and creating a school system where the teaching will all be in Cherokee. That's part of creating citizens.

History: I'll use the Cherokees again because I think this was another creative thing they did. Every employee of the Cherokee Nation -- whether you're a citizen or not -- has to take a history course on the Cherokee Nation's history and the chief of the nation -- the Cherokee, they call the top guy the 'chief' -- the chief of the nation said, 'We do this because we want to be sure everyone understands what's at stake here, what we've been through, what we lost, what we kept. When you work for us, what grand purpose are you serving? So we teach our history.' That's part of creating citizens.

Tribal civics: some of you know Frank Ettawageshik from the Little Traverse Bay Bands of Odawa, and Frank talks about tribal civics. He says, 'My kids know the capitol of this state, they can tell you the major rivers in the state, but they don't know anything about tribal government. They don't know what it's about because none of our schools teach any of that stuff.' He says, 'We need a tribal civics course that teaches you why we have a government, what it does, what nationhood means. That ought to be in our school system.' That's creating citizens. What's the role of elders in creating citizens, of youth, of tribal leadership in creating citizens? And do your citizens know what citizenship actually means? Maybe that's a discussion -- which, as you go through some of these processes of rethinking citizenship -- maybe it needs to be a community discussion not about legal criteria or technical details, but about what citizenship means or what you hope it will mean 50 years down the road.

I was reminded...I was chatting with a good friend who's from one of the more traditional Pueblos in New Mexico last week and we were talking about...I had mentioned that I was going to be at this discussion of citizenship and we were actually talking about the fact that this Pueblo still practices banishment. It happens very rarely. In fact, he told me it hadn't happened in probably a dozen years but I thought it was interesting, banishment means excluding someone from the Pueblo, and I guess the legal version of it in some places today would be disenrollment, but what I thought was interesting was the discussion about what happens. Banishment doesn't have anything to do with whether you're descended from the tribal roll, it doesn't have anything to do with blood quantum in this Pueblo, it doesn't have anything to do with any of that. He said, 'The question is, can you live as a responsible citizen of our nation.' And he said, 'We have some people who engage in behavior that is unacceptable among our people and we have a process...' It's not written down. This is a nation with no written constitution, it governs in a very old way. He said, 'We have a process. You correct the person. You sit them down, you talk to them, you say, "You are not behaving the way we expect of our people," and you give them a chance to correct that. And if they continue to show that they can't do it, you do it again. You do it with elders, you do it with their relatives. You do it three times and if after three times they still demonstrate that they cannot live as a responsible part of our community, then they have to go because they're a destructive force in the community.' And he said two things I thought were interesting about that. He said, 'We can't think of a more extreme punishment because what you're saying to them is, "You can't come home again, ever." But it's not about blood quantum, it's not about descent. It's about, 'Can you participate fully and responsibly in our notion of what it means to be a citizen?' And maybe that's more the discussion that we need to be having when we talk about citizenship. Thank you very much." 

David Wilkins: Putting the Noose on Tribal Citizenship: Modern Banishment and Disenrollment

Jr. Distinguished Indigenous Scholars Series

The final speaker for the 2008 Vine Deloria, Jr. Distinguished Indigenous Scholars Series at the University of Arizona, scholar David Wilkins (Lumbee) shares his research into the recent and growing phenomenon of disenrollment that is occurring across Indian Country, and delves into the likely motivations behind the efforts of some Native nations to engage in mass disenrollments of their citizens. He also argues that disenrollment is counter-cultural to Indigenous peoples, revealing that his research unearthed few examples of this sort of behavior historically.

Resource Type

Wilkins, David. "Putting the Noose on Tribal Citizenship: Modern Banishment and Disenrollment." Vine Deloria, Jr. Distinguished Indigenous Scholars Series, American Indian Studies, University of Arizona. Tucson, Arizona. November 13, 2008. Presentation.

David Wilkins:

“Hello folks. Hello folks. All right, you’ve got to be with me here tonight. I’m really happy to be back in Tucson. Tom [Holm] actually had me come in this Sunday so I’ve been here for a fairly long while. But he set it up so that he worked me to death for a day and then I have some time off, and then I get worked to death for another day, and then I have some more time off. So it’s a nice balancing act. First of all, I want to ask does everybody have the tables and the figures? If you don’t, they should be out there at the desk there. You need to have those because this is the data that I really want to share with you tonight and really get you to ponder.

One of the great lessons I learned from Deloria and from Tom and from the other faculty that I had the privilege of studying under when I was here in the early ‘80s was the, Vine especially drummed into us the need and the absolute will to be willing to critique our own. Vine, as you know, from having read some of his publications, he not only attacked the federal government when the government needed to be attacked and the corporate world and various institutions of governance, he would also attack tribal governments when they acted astray or when they violated fundamental norms of justice and fairness. And he drilled that into us as his students and he reminded us to always be willing to challenge injustice wherever you see it. And so I’ve tried to follow his sage advice all these years. And this work that I’m going to be talking to you about tonight is one example of that.

But I really am happy to be back in Tucson and I thank you all for coming out this evening. It’s always nice to come back to one’s alma mater, especially when you’re leaving or fleeing a really cold and already snowy Minneapolis, Minnesota. We didn’t get dumped on like the Dakotas, but we got quite a bit of snow and it’s been really cold up there. And I’m not quite ready for the long slog of a Minnesota winter, but I have to steel up, which I’m down here getting all the rays that I can, trying to absorb as much as I can. It’s nice to be back on this campus and I’ve been piling as much Mexican food in my body as I can. I’m almost bilingual now I’ve eaten so much Mexican food. It’s really nice. There’s not a whole lot of good Mexican restaurants in the Twin Cities as you can imagine. But my wife is Diné, she’s from northern Arizona, born in Tuba City, raised out at Red Lake, Tonalea Chapter. I met her here when I was in my first semester as a student studying under Vine. I wasn’t quite ready to commit at the time, but she came back at the end of my tenure here after I had survived Tom’s seminars and Vine’s seminars and she said, ‘Are you ready now?’ I said, ‘Please take me in, take me in,’ and she did. And so we got married and we have three lovely children who are all practically grown now. But it’s just, she regrets not having come back with me and have a chance to be back here.

It’s been nearly 30 years, as Tom and I were talking over the last few days, since I was, I can’t imagine it has been that long, but there it is. But I thank Tom and Tsianina [Lomawaima], she’s at an ethnohistory conference right now, and the AIS [American Indian Studies] program for bringing me back as one of the speakers. The three previous speakers are hard acts to follow, especially Chief Mankiller, but I will do my best and I appreciate Teresa Spoonhunter for setting up all the logistics for my visit here.

The three concepts that I’ve worked with probably more than any others are the concepts of Indigenous governance, Indigenous activism and tribal sovereignty. And these are also concepts that were close to Vine’s heart and his mind. Although Vine as you know was our -- in using Tom’s words -- our renaissance scholar because he studied virtually everything under the sun. And so we may not see the likes of another Vine for many years to come. But these are the concepts that I work most closely with. They were first brought to my attention when I was a freshman in college in 1972 when I read Custer Died for Your Sins. Hopefully most of you have had a chance to read that. And that book really just sort of pried open my mind and taught me and reminded me of the beauty of our cultures and our languages, of our responsibilities and obligations to one another and the federal government’s politics and laws and so on. And they’re what led me to come here in the first place when Vine called me up and recruited me to the U of A [University of Arizona].

A good friend of mine, Helen Scheirbeck, who’s a Lumbee, worked in D.C. for many years. I had met her at a conference in Raleigh and she said that Vine had just established a program and when she described it, it sounded just what I had been waiting for. And she said, ‘Well, I’ll tell him that you’re interested.’ And I didn’t really believe that she even knew who Vine Deloria was, but she sounded convincing. I said, ‘Okay, well, let him know that.’ And a week later he called me up at my work place. He said, ‘Mr. Wilkins, I hear you want to come to Tucson.’ I said, ‘Is this really Vine Deloria?’ He said, ‘Well, who the hell do you think it is?’ He always spoke very bluntly to you. He described the program and told me Marlys Duchene was already out here and I said, ‘Oh, yeah, I’m ready to come to Tucson.’ And that’s how we got first introduced even though I had heard him give a couple talks in the east.

But as Tom and I were working out the details of my visit here, he told me that I would have a chance to speak to a larger audience and the topic that immediately came to my mind was 'how do our nations define ourselves?' and 'how do we determine who can rightly belong to our nations?' And more importantly, 'What are the grounds on which those relations can be terminated or severed?’So the talk is mine, but the title for the actual talk is Tom’s. He actually came up with the title. He said, ‘How does this sound?’ It sounded very good. I’ve never been very good with titles and have to draw upon my colleagues. David Gibbs, who’s here tonight, has helped me with several titles for some of my work. I’m always looking for title ideas.

But as a Lumbee, the issue of deciding who is and is not Lumbee is one that our nation takes very seriously. It is, we believe, an internal decision that outsiders should have no say so in. But since every individual Native person has been recognized as a citizen of the United States since 1924, if not earlier, and we now have three layers of citizenship -- our Native status, our state rights as citizens and our federal status -- our situation is more complicated than any other group in the country. I’m convinced that if we are not careful in addressing this issue, that the federal government may eventually be compelled or will simply choose to act and will intervene again in profound ways, ways that will I’m sure have a devastating impact on the core sovereign power of deciding who has the right to belong to our nations. They’ve done it many times before, especially during the late 1800s and early 1900s when the Department of Interior on many occasions simply stepped in and told tribes to enroll this family or this group or this individual or told them they had to evict those individuals. Under the IRA [Indian Reorganization Act], if you read many of the IRA constitutions, the issue of membership is left to the tribe, but the Secretary of Interior has the ultimate discretionary authority to override tribal membership decisions. So we should remember our history. And under the self-assumed power of congressional plenary power with the court’s blessing, the federal government maintains to this day that they have the authority to intervene in all of our affairs including that of membership or citizenship. So with that as a rather stark opening, let me get to my prepared remarks and share with you the research that I’ve been doing on this topic and then we should have plenty of time for some question and answers later on.

Native nations are in the midst of some profound changes these days that rival and in fact may well overwhelm those that we face historically. The effects of gaming revenue on our communities and our relations with other governments, the ever-increasing level of Native political involvement in non-Indian elections, something we talked about in Tom’s class the other night and in the colloquium. Were you all Obama or McCain supporters? How many Obama supporters in the room? How many McCain supporters? A couple. Any Nader folks left anymore? Do they still exist? Well, we’ll see what Obama does. But it’s interesting that we have that many people very actively involved in the national elections. The increasing international involvement of Indigenous peoples, the recent adoption by the United Nations of the declaration on Indigenous peoples rights and the ratification two summers ago of the Intertribal United League of Indigenous Nations Treaty that was signed in Washington State, which evidences our continuing national and international status. There are of course the tremendous environmental changes that are bringing about profound changes to our lands, our waters, our skies. Just today in the New York Times, anybody catch what the Supreme Court said just yesterday? They handed down a decision in which the Supreme Court by a 5-4 decision told the Navy, ‘Go ahead and use a sonar and all the other equipment you want even if it causes horrific damage to whales and dolphins and other species of the oceans.’ So again, we see what the priorities are of the Supreme Court. And then we also have fascinating cultural and linguistic developments that are having significant consequences for our nations both good and ill. And then there’s a little thing called Wall Street’s meltdown and the financial distress and crisis that the nation, in fact the world is in the middle of and we’re part of that, aren’t we?

So there’s a lot happening folks and all these developments remind me that we live in an ever shrinking and vastly interrelated world, a world that requires knowledge not only within and about our own cultures, but outside our reservation, trust or urban borders, as well. Vine Deloria always emphasized that we must develop a comprehensive bird's eye view of the world, but we must also be able to see the world from a very localized perspective. What Gunnar Myrdal once called 'a frog's eye perspective' and I think we need to have the ability to have that bird's eye view and that frog's eye view and be able to navigate between those two perspectives if we want to be effective advocates of our nations.

Now as I noted earlier, I belong to the Lumbee Nation of southeastern North Carolina. We’ve got a couple Lumbees in the house tonight. Yeah, there they are, sitting right there. We’re about 55,000 strong. We currently lack complete federal recognition as a bona fide American Indian community by the BIA [Bureau of Indian Affairs], but my lovely wife, Evelyn, as I said, is a duly enrolled member, citizen of the Diné Nation, the largest reservation-base First Nation in the country. So even before I joined the academy, I had already because of my two distinctive east and west tribal affiliations embarked on research to better understand Indigenous nationhood, tribal sovereignty and self-determination. And in fact, when our two, when I hooked up with my wife, with my tribe being so large and hers being the largest, we thought we might have 13 children but we stopped at three. That’s all we could handle.

My Ph.D. is in Comparative Politics, but I tell my students as I told the students yesterday that I’m really a “polegalorian” because I combine politics, law and history in roughly equal parts to try and better understand what makes Indigenous politics and governance and law go round. And one of the best books I read in graduate school was Frantz Fanon’s classic study The Wretched of the Earth. It’s a brilliant study of the physical and psychological damage that colonialism unleashes on those who are colonized and on the colonizers as well. And Fanon made one statement that has always resonated with me. He said, and I’m quoting here, ‘Because it is a systematic negation of the other person and a furious determination to deny the other person all attributes of humanity, colonialism forces the people it dominates to ask themselves the question constantly, ‘In reality, who am I?’ And I think that’s a powerful question and that pithy statement still echoes loudly when I see the ongoing social, economic, cultural and psychological problems that are manifest throughout Indian Country.

Vine Deloria raised a related, but even a more comprehensive question in a number of his works. Vine like Fanon was deeply concerned about the manner in which Native nations went about their psychological recovery after decades of harsh assimilation and the persistence of ongoing disparities in political, legal and economic power. In short, he understood that disparities evident in Indigenous state relations were also forcing Native peoples to inquire, ‘Who are we?’ Vine raised this question in a particularly pithy essay in 1974 and he said this, ‘The gut question has to do with the meaning of the tribe. Should it continue to be a quasi political entity or could it become primarily an economic structure or could it become once again a religious or spiritual community?’ Vine emphasized that historically Native peoples were primarily spiritual communities. But he was troubled by the directions that some tribal governments were veering towards where economic, racial, DNA, political and legal criteria were becoming more meaningful than the kinship and clan based spiritual understandings and relationships that once linked our communities solidly together and that enabled us to endure what we’ve been enduring for the better part of half a millennium.

So let me now turn to an examination of this issue, one that appears to be damaging the collective heart of Indian Country -- the banishments, expulsions and disenrollments. 'Disenrollment' is a legal term of our art devised in the 1930s under the IRA in Indian Country that have increased dramatically in recent years. This issue -- the literal, physical reduction in the size of our nations goes to the heart of Fanon and Deloria’s queries to the essence and meaning of Indigenous membership or citizenship or clanship or whatever term you’re comfortable with and directly deals with social justice, civil rights and human rights in Indian Country. Native nations, as one of our inherent powers of governance, retain the right to remove, to exclude or to disenroll people from our nations, from our lands and from our membership rolls; both legally and culturally enrolled citizens and non-Indian and non-member Indian residents as well.

But it wasn’t until I read a 1996 Federal Court of Appeals decision, Poodry v. Tonawanda Band of Seneca, which held that several Seneca, who had been banished, did indeed have recourse under federal law to test the legality of their tribal government’s actions and that’s what convinced me to take a closer look at this issue. This case raised a sticky question of whether Native individuals had the right to use non-Indian courts to contest what their nation had done to them in regards to their membership status. And this -- as I eluded to at the outset of my remarks -- is one of those areas where it’s becoming clear that some federal courts are willing to intervene in these matters because of the importance of membership or citizenship to those facing banishment or disenrollment. As the court said in Poodry, ‘Banishment was indeed a severe enough punishment involving a sufficient restraint on the liberty of those being banished to qualify as what the court said was detention and to thus permit the federal court to review under the Indian Civil Rights Acts habeas corpus rule.’ The issue of citizenship as a fundamental property right may be in the works as well in terms of when the federal courts will get involved. Since property, as we all know, in one’s person is also fundamental to Americans and the economic system of this nation. More recently, two related cases involving banishment and disenrollment among the Santa Rosa Rancheria in California, Quair v. Sisco 1 and Quair v. Sisco 2 have expanded the scope of federal review and may in fact be a harbinger of things yet to come, signaling that the feds are willing, in certain cases, to intervene if tribal governments don’t provide adequate civil safeguards to those it desires to banish or disenroll.

Now what these three cases show is that the federal courts are increasingly willing to enter into our internal decisions on enrollment or disenrollment like they once did historically and with a great deal of regularity. This has, as you can well imagine, some major implications for tribal sovereignty on this most basic issue of self-governance. So with this legal backdrop let me get into the bulk of my remarks now.

After the Poodry decision in ‘96, I noticed that banishments and disenrollments were apparently happening with much greater frequency in Indian Country. I was struck by the fact that as a number of expulsions and disenrollments continued to increase, particularly of tribally enrolled citizens, that many of our governments were justifying such exclusions on the grounds that this was a power they had always wielded and were simply wielding anew. So I began collecting. Like a packrat, I started collecting all the articles, all the cases, all the newspaper clippings I could to see what I could learn about this. With tribes increasingly engaged in terminating the cultural, political and legal identities and citizenship status of some of their own people, Fanon’s query and Deloria’s question of ‘who are we as Native nations?’ loomed in my mind. Are Native nations still in an era of tribal self-determination inaugurated in the 1960s and 1970s by Indigenous self-will and federal policy in which we make decisions based on Indigenous values that respect kinship connections or have we now entered a frightening and novel state of what I call Native self-decimation in which an ever increasing number of tribal nations are cutting off organic parts, members of their own community body by banishing or disenrolling legally and culturally recognized citizens for sometimes specious reasons?

This is I think a significant question to ask because if First Nations are indeed communities of related kinfolk, which is what we once were, then it would appear to me that the grounds on which to sever or terminate such a fundamentally organic and deeply connected human set of relationships would have to be explicit and would in fact rarely be carried out given the grave threat that such expulsions, the literal depopulation of already small communities would pose to our very existence. Unlike Arnold Schwarzenegger’s "Terminator" character, we can indeed self-terminate, ladies and gentlemen, and this seems to be happening before our very eyes. And those charts that I asked you to, that I handed out gives you some evidence that this is in fact a growing phenomena and it has me scared to hell, to be honest with you.

Furthermore, I pondered how and why it was that the United States government, a secular state with the most diverse population of any country in the world, has in place protections that make it far more difficult for the federal government to strip American citizens of their citizenship status. Federal law does allow for the expatriation of American citizens who join foreign military units or act treasonously against the United States, but only where such actions are done ‘with the intention of relinquishing U.S. nationality.’ In other words, according to the Immigration Nationality Act, American citizens are subject to loss of citizenship if they perform certain acts voluntarily and with the intention of relinquishing their citizenship. And a person wishing to denounce their U.S. citizenship must voluntarily one, appear in person before a U.S. councilor or diplomatic officer; two, do so in a foreign country, normally at a U.S. embassy or consulate; and three, sign an oath of renunciation. So it’s not easy to stop being an American citizen, see? Interestingly, an American citizen cannot renounce their citizenship while in the United States. It can’t be done by mail and it can’t be done through an agent.

In contrast, our nations have what is today virtually absolute power, dare I say plenary power, to banish members and non-Indian residents and to disenroll or disenfranchise otherwise bona fide tribal citizens. So on this critical issue, tribal governments are far more powerful than the federal governments and the state governments. But is this what we want to be known for, that we can wield that kind of power over our own relatives? While we endure and have vigorously protested the virtually unlimited federal plenary power that is exercised over our lands, our resources and our rights, many of our own tribal governments are today increasingly exercising an even more pronounced version of plenary power and this in many cases over their own relatives. I find that a frightening reality.

After completing my preliminary research, I then critically examined several related questions in this ongoing research, and I say it’s ongoing because I continue to receive and analyze data. I have friends that have been disenrolled and that are facing disenrollment and they send me all kind of newsletters and all kind of information, they keep me updated and it really is just mushrooming out of control. A colleague and I have compiled a database of 318 tribal constitutions and these include the IRA constitutions, those established in Oklahoma and Alaska and tribal constitutions that post date the IRA as well. And I’ve also over the years collected quite a few pre-IRA constitutions, some of which are going to be in that book that Tom was kind enough to blindly review for me.

Now while the constitutions that mention disenrollment or exclusion contain a variety of statements about how and why these processes may be carried out, as will be discussed in a moment, we found only one instance in all 318 constitutions where a Native nation has expressly declared that it would never banish its own citizens. Does anyone want to take a guess which tribal nation says that in their constitution? Anybody? The Pleasant Point Passamaquoddy. We’ve got a Passamaquoddy here?”

Audience member:

“Half. Half Passamaquoddy.”

David Wilkins:

“Well, there you go. In their 19, in your 1990 constitution, it says, and I quote, ‘Notwithstanding any provisions of this constitution, the government of the Pleasant Point Reservation shall have no power of banishment over tribal members.’ That’s the only one that says that. And when I first discovered that clause I got on the horn. I called the Pleasant Point and I tracked down one of the authors of their constitution and I said, ‘What compelled you to insert this clause? You’re the only tribe that has this in your constitution.’ And he said, ‘We felt that it just, we had to do this. It wouldn’t be right for us to say we have the power to decide who no longer is one of us. We’re not going to be in office for long. What if somebody comes in after us and decide that we’re not members?’ But he said, ‘I have to be honest with you. We’re having so many problems with drugs in our community we’re beginning to think we might have to revisit this.’ So I don’t know how long even this provision might last.

So as I prepared to write an article about this as I finally felt I had enough data, these are the four questions that I came up with that guided me as I entered this shaky area. The first one is, how do the current disenrollment or banishment proceedings compare or contrast with the traditional means, if that is even discernible from a documentary or oral history available, that First Nations once used to banish or remove tribal citizens, assuming that they did that? Second, why are disenrollments and banishments occurring at the intensified rate that they are? What’s moving that, what’s making that happen? Third, what are the rationales being used by tribal officials to justify the expulsion of tribal or non-tribal individuals and families? And then fourth, how do current disenrollment, banishment proceedings comport with the tribe’s constitutional provisions, if the tribe has a constitution, because half the tribes in the United States don’t operate under constitutions?

So these were the four questions that I was pondering as I moved into it and immediately, having studied this stuff for a number of years, three incongruous premises I was reminded of as I got into it. First, as sovereign nations, our governments retain as one of our central powers of self-governance the right to decide who can be in our nation. The Supreme Court said that in what case? 1978. Come on, folks. Some of you have had Robert Hershey or Tom Holm’s classes. What Supreme Court decision said in 1978 that tribes can decide their own membership? There, thank you. Yes, Santa Clara Pueblo v. Martinez. That’s the linchpin decision on that. Second, many tribal nations, under their powers as governments and landowners, also reserve in their treaties and constitutions, the right to exclude non-members from their reserved homelands with stipulated exceptions for certain federal officials. But then third, and here’s the kicker, the federal government, under the constitutionally problematic doctrine of plenary power, has reserved to itself the power to trump both of those first two premises and to overturn or interfere with any tribal nation’s powers including citizenship, membership decisions when it suits the federal government’s desires to so intervene.

It’s this third premise that our governments must always bear in mind, because nothing we do can ever fully be said to be completely immune from the scope of federal interference, notwithstanding the doctrine of tribal sovereignty or the absence of constitutional markers granting such unlimited authority to the United States government. And more disturbing, as we move deeper into the 21st century, is the fact that state governments increasingly, with the explicit and precedent defying sanction of the Supreme Court, are increasingly moving into tribal territories and jurisdictional realms and are imposing their authority over our lands, our rights, our resources. In fact, the states are beginning to act like they have a form of plenary power over us and if we don’t find some way to deal with that, we’re really going to be caught in a vise, ladies and gentlemen. So as a comparative, let me give you some background to this broad topic of banishment because as [Rene] Descartes once said, although I may be misquoting him here, ‘Intentionally, I think therefore I compare.’ I think that’s what he said. I could be wrong there.

Now, worldwide the political, religious or military leadership in societies have reserved to themselves or shared the power to authoritative expel certain individuals, families or sometimes even entire groups from their respective nations or states as a punitive measure for what they considered grave offenses. As such, enforced removal from one’s Native land entailed a devastating loss of political, territorial and cultural identity for those expatriated since those evicted were utterly deprived of the security and comfort of their own family, community, religious or ethnic group. One of the earliest recorded and arguably the most widely known case of formal exile according to Christian tradition was what? God’s banishment of Adam and Eve. I mean, Eve had to have that apple and God got a little bit ticked off and what happened? They got banished, they got evicted from the Garden of Eden for their act of disobedience. That’s a fairly ominous precedent to follow, don’t you think? Another famous exile also involved God. Cain’s killing of his brother Abel compelled God to banish him and to place a shaming mark on Cain. So that’s where it all sort of begins at least from a Western tradition. Early Greeks and Romans used exile as a form of punishment appropriate to major crimes such as homicide, although ostracism, a milder variant of exile was sometimes imposed for political reasons. Among Romans, physical exile was one way for an individual to avoid the death penalty with voluntary exile allowing the accused to cope with prolonged if not always permanent absence from their country of origin. So along with involuntary exile, voluntary expatriation is another dimension to immigration where what is sought is not primarily the advantages of the place to which one goes, but essentially freedom from whatever disadvantages prevailed at home. Sometimes we just choose to leave. That’s voluntary immigration. Now I’m addressing that particular aspect of Indigenous exile, although it’s clearly a matter that deserves attention because where do 60 percent of us now live? In urban areas. Why have we left our homelands, why have we left our reservations, our trust lands? Well, there are lots of reasons why and that would make for some interesting studies right there. So M.A. students, Ph.D. students, ponder that.

Historically, some Native nations occasionally exercised the power to banish members. However, there’s not a whole lot of documentary or even oral data on this. I searched real thoroughly because I wanted to find out, is this something we used to do and if we did, who did it and why? We do know that the Iroquois Nations, if you read the Great Law of Peace, it has several provisions regarding banishment. If a chief kills another person, that individual is banished forever. And that’s in the Great Law and there’s another provision for regular people if they commit crimes, they can also be banished although they were given an opportunity to be brought back in at a later time. The Cheyenne people on rare occasions also banished individuals who committed horrific offenses. Llewellyn and Hubbell’s book talks about their banishment procedure. But the few available sources that document the power to banish or forcibly exclude show that it was a practice that was rarely used since Indigenous communities focused on mediation, restitution and compensation to deal with problem-causing individuals. No one in tribal society wanted to be ostracized, least of all banished or exiled, and certainly tribal leaders were very careful in exercising power that might lead to such dismissals since in most cases they were probably related to those they were getting ready to banish because we were always about restorative justice, not in a punitive measures.

So with that as a background, I then moved into -- with my computer friend’s help -- a search of our tribal constitutional database to see what if anything tribal constitutions say about this. And what we found was that the terms banish, exile and exclusion do not appear in any of the 318 constitutions. But we did find the phrases loss of membership, the word expel and the word expulsion a number of times. The loss of membership was found in 150 tribal constitutions. So there are ways we can, individuals can lose their membership. Typically it’s for excessive absences if you’re a tribal official or if you have sort of a diluted blood quantum, which is another dimension. Interestingly, the term disenrollment was only found in six constitutions typically involving tribal members who had gotten themselves enrolled in more than one tribe. That’s really frowned upon by our nations, huh? You have to be all Diné or all Yakima or all Lumbee. You can’t belong to two tribes even though many of us have multiple tribal ancestries. Non-Indians and non-member Indians could also be expelled from tribal lands if they were deemed to be disruptive to tribal stability or for other related reasons. In fact, many Native nations retain the explicit right in one or more of their treaties to expel or exclude from tribal lands any non-enrolled Indians or non-Indians except those specifically authorized to be there. The Navajo Nation’s Treaty of 1868 empowers the Navajo Nation to exclude or to expel non-members from their lands if they want to do that. And I’m going to just read you a couple of examples in which, of some of the language in a few tribal constitutions that deals with the issue of exclusion.

The Abenaki people of Maine, their constitution says this, ‘The tribal council may recommend permanent disenfranchisement of any member for serious violations of any of the provisions of the constitution or bylaws made pursuant thereto and the majority vote of the members present at will, will be necessary to call such member to be permanently disenfranchised.’ The Alabama Coushatta constitution says, ‘The tribal council may, by an affirmative vote of five members, expel any members for neglect of duty or gross misconduct. Before any vote for expulsion is taken on the matter, such member shall be given an opportunity to answer any and all charges at the designated council meeting, but the decision of the tribal council shall be final.’ So a number of tribes have provisions in which they lay out very explicitly the grounds on which you can lose your membership; again, the most common phrase in many of the constitutions.

Now what this abbreviated cross-section of constitutions shows is that not surprisingly, there is a significant amount of diversity regarding the rationale used by tribal officials to formally disenroll or physically expel tribal members. In some cases, those facing expulsion or disenrollment were entitled to a hearing so they could learn the reasons they were going to be forced to leave. More often provisions for loss of membership in IRA and later constitutions tend to emphasize a voluntary angle in which tribal members might decide to emigrate from their nation in order to permanently separate themselves from their birth nation. Now it’s important to note that provisions regarding a tribe’s power to exclude non-Indians or non-member Indians from tribal lands are far more prevalent in tribal constitutions than language regarding the actual disenrollment of bona fide tribal members. In other words, when I lived on the Navajo reservation, I made sure I kept a clean nose because I didn’t want to get escorted off the rez by Mr. [Raymond] Austin or somebody in the police force. So I was always aware of that.

1978 was a watershed year for Indian rights with the Supreme Court handing down two major decisions that affected tribal sovereignty, internally and externally. In Oliphant v. Suquamish, the Court deprived tribal governments of the external power to prosecute non-Indians who committed certain crimes, while the Santa Clara case held that tribal governments retained the internal power to decide their own citizenry. Santa Clara in fact appears to have been sort of the beginning point that has emboldened tribal governments to be more emphatic or proactive or in some cases retaliatory in their efforts to clarify their tribal citizenship or membership roles because it’s in the wake of this decision that we begin to see a slow rise in the number of banishments and disenrollments, a rise that increases dramatically in the 1990s when gaming revenue becomes a major stream [of revenue] and when crime in Indian Country just takes off dramatically.

In studying contemporary law and literature, there appear to be four major reasons relied on by tribal governments to justify the banishment or disenrollment of tribal members. One, family conflicts; two, racial criteria and alleged dilution of blood quantum; three, criminal activity including treason or drug sales or gang activity; and then fourth, and finally, financial issues, whether it’s the distribution of per capita gaming assets or judgment funds or something like that. Of course in some disenrollment cases, enrollment committees, tribal councils, judicial bodies, may invoke more than one reason to justify the disenrollment of individuals or families. In other words, disenrollments may be politically motivated, economically motivated, racially motivated or culturally motivated or some combination of the above. For example, just last month the Mille Lacs Band of Ojibwe up in my wintery state banished four band members for five years based on a number of assaults and weapons violations. In this instance, the banished individuals are still entitled to receive their yearly share of casino profits, about $7,000 a year, although they can’t actually set foot on the reservation to collect the revenue. Someone had to send the check to them, it had to be mailed to them or something. And they can request reinstatement to the tribe in 2013 if they’ve lived a clean life and held steady jobs. So this was just last month, four people up in Mille Lacs.

Throughout Indian Country banishment and disenrollment proceedings have indeed increased, and as you know from the table, one of the tables in California alone, especially Laura Wass's table, you can see that at least 16 native communities have or are currently involved in the process of disenrolling sometimes significant numbers of enrolled tribal citizens. And California’s joined by Nevada, Iowa, New York, New Mexico, Minnesota, Washington, Rhode Island and other states as well. And not surprisingly, the reasons for contemporary disenrollment or expulsion of tribal members -- not to mention the disenfranchisement or expulsion of non-Indians or non-member Indians like the Black Seminoles or the Cherokee Freedmen in Oklahoma -- coincide with the ones discussed previously ranging from those steeped in traditional philosophical values to those that reflect new economic and societal forces. Each Native nation that is actively engaging in expulsion or disenrollment of enrolled citizens or non-enrolled citizens of any country deserve specific and detailed assessment. But time and the lack of comprehensive and comparative data does not permit such a systematic and comprehensive inquiry at this point. I’ve tried, but it’s not easy. Efforts to secure factual information about banishments and disenrollments is not an easy process and tribal governments are sometimes reluctant to share this kind of data with outside parties, especially nosy Lumbees, because they say, ‘Hey, you’re not a member. You don’t have the right to know.’ Moreover, the role of Bureau of Indian Affairs is vital on this issue, but attempts to secure information from that body are equally difficult since the Bureau generally insists that those are internal matters to the tribe. And of course given the Cobell litigation, I don’t know that we could even trust the information coming out of the BIA if we were able to get any information from the BIA.

So what is evident is that historically the power to banish or disenroll tribal relatives was utilized, but only in the rarest of circumstances and even then, with the expelled usually having the opportunity to be readmitted if certain conditions were met. Since Native nations were in effect extended families of related kin, the idea of permanently expelling one’s own relatives was not a decision made lightly since traditional values and norms sought strenuously to use much less traumatic forms of punishment to restore proper social behavior. However, as tribal nations continue to expand, with our citizens becoming more differentiated through intermarriage, exposure to and appropriation of certain western values via popular culture, mass media, democratic institutions, and with the oftentimes disruptive role of capital generated from gaming institutions, smoke shops, claims settlements, some tribal governments have felt compelled to consider more dramatic sanctions like banishment and disenrollment as one means to cope with an ever-changing landscape.

There are a number of brazen examples where tribal governments have acted maliciously and I believe unjustifiably to disenroll or banish some tribal citizens on the most spurious of grounds including inter-personal feuds or grabs for raw political power or sheer economic greed. In one of the harshest cases that’s on some of the tables that you have in front of you, the Picayune Rancheria of Chukchansi Indians in California have disenrolled 900 of their 1,500 citizens. Now think about that, ladies and gentlemen. More than half of the nation has been disenrolled. They no longer exist for political and legal purposes as Chukchansi. Now what does that say about this community? And those individuals have lost not only their tribal citizenship, but also their primary source of income, health care benefits, etc.

And a few months ago there was an article describing a recent ordinance by the Rocky Boy Tribal Council in Montana that makes it an offense ‘for any person to engage in communication that harms the reputation or integrity of another.’ And according to the ordinance even the mere allegation of slander or liable are sufficient grounds for the tribe to take action. And that action might lead if convicted to loss of all that person’s real property and a five-year exclusion from the reservation and a fine of up to $5,000. And a second offense is punishable by relinquishment of enrollment and permanent exclusion from the reservation. When I first heard about this, I researched that a bit more and I learned that apparently that ordinance was passed after several anonymous letters were passed around the reservation alleging that some tribal council men were buying trucks and four-wheelers with tribal funds and were misusing tribal credit cards. So there you have it. Someone has since told me that they think that that ordinance has been rescinded. I haven’t been able to verify that. I hope it has.

Now when Native nations overreact like this, such actions I believe violate not only tradition of values, but they also profoundly violate the basic civil and human rights of those disenrolled, if the disenrollees have been wrongly disenfranchised. Yet today, a wave of banishments and disenrollments have been unleashed, leading to the legal, political and cultural exile of thousands of bona fide Native citizens. As our nations continue to evolve, it is imperative that we carefully consider and follow our own traditions and values and consider those of other enlightened communities that focus on fairness, justice, moral equality and respect before engaging in behavior, disenrollment of duly enrolled citizens, that profoundly violates our peoples’ human, social and civil rights and further exposes our already vulnerable nations to outside forces ever intent on limiting what remains of tribal sovereignty. Finally, as John Maynard Keynes once said, and I’m quoting here, ‘While the means we use may be molded by the ends we seek, it is the means we use that mold the ends we achieve.’ So we'd better be careful. Thank you very much, ladies and gentlemen.”

Frank Pommersheim: Constitutions: Powers, Implementation, and Interpretation

Native Nations Institute

University of South Dakota Professor of Law Frank Pommersheim discusses the fundamental difference between a plenary power constitution and a reserved or enumerated powers constitution, and recommends that Native nations think very carefully about constitutional implementation and interpretation when developing or reforming their constitutions.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Native Nations
Resource Type

Pommersheim, Frank. "Constitutions: Powers, Implementation, and Interpretation." Remaking Indigenous Governance Systems seminar. Archibald Bush Foundation and the Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Prior Lake, Minnesota. May 3, 2011. Presentation.

"Now what I wanted to do is to build on a few things that were said yesterday. In terms of thinking about constitutions broadly, I think two things were said yesterday I think are really critical for constitutions to address. The first one is the relationship of a tribe's constitution to its treaties. I think that's a very, very critical relationship for tribes that have treaties because I would argue for tribes, the two most important documents that exist for tribes are their treaties and their constitution. And since constitutions follow treaties, I think it's important that tribal constitutions make reference to their treaties and how treaties represent their sovereignty and represent their diplomatic stance vis í  vis the United States and the international community. And I think it's just necessary that tribal constitutions address their treaties in a very positive way, because if they don't there's sort of a disjunction between the tribe's organic governing document -- its constitution -- and its treaties. So I think that is very, very important for that to exist in tribal constitutions.

The second thing, and I think this was only mentioned a little bit yesterday, was the notion about in a tribal constitution, I think it's important that a tribal constitution say where the power is coming from that's reflected in a tribal constitution. Does it come from the people? Does it come from the clans? Does it come from the tiyospayes? What is the source of the power and values that exist in a [constitution]? Where does it actually come from? And this is very important not only in a broad sense, but it's very important in a practical sense. And I'm going to give one or two examples of how it's important in a practical sense. Because one of the issues that has actually come up for a few tribes is when the tribal constitution transfers powers to the tribal government, does that tribal government have all the power of the tribe? Or the converse: does the tribal government only have the power that's been transferred in the constitution by the people and the people retain some of that power? And one of the ways to think about that is a tribal constitution -- what I would call -- a plenary power constitution, in which the people knowingly or unknowingly have transferred all of its power to the government; or is it more of an enumerated powers constitution or a reserved powers constitution, in which the powers that have been transferred to the government come from the people and the people retain certain powers and the possibility of changing that distribution of powers? So how a tribe conceives in the large sense of its constitution as being either a plenary power constitution or a reserved powers constitution, I think is a very, very significant issue. And the way a tribe integrates its treaties into its governing document is also to me very, very significant.

Now yesterday when people were talking about constitutions or governance, they talked principally in the context of values and structure. And I want to add on two other kind of stages or variables. And I would add to values and structure the notion of implementation and interpretation. And Don [Wharton] mentioned implementation and I think that's absolutely critical, because the reality is that many provisions in tribal constitutions are not self-executing. That is that they require actions by the tribal council to enact powers that are recognized in the constitution itself. And how a tribal council actually implements certain powers that are granted to it in a constitution is very, very important, because sometimes tribes will get that just right, sometimes they will go arguably too far, and sometimes they won't go far enough. So when you're thinking about constitutional governance you not only have to think about the constitution, you have to think about the implementation component. That is, how does a tribal council implement provisions and guarantees in the tribal constitution? Because many provisions, just like in the United States Constitution, they're not self-executing. They require a law being enacted by Congress in the context of the United States Constitution. And I think the same is true in many cases for tribal constitutions. The council has to pass ordinances that actually put into place the powers that are granted to it in a constitution. And I think that's a very important kind of next step process that constitution is kind of an everyday ongoing thing and that implementation component is a very, very important part of it.

And then the last part and I don't think this was actually mentioned at all yesterday is what I would call the interpretation element because more and more tribal constitutions...what happens when -- in good faith or in bad faith -- tribal people disagree about what a constitution actually means? It's going to have to be interpreted by someone. And more and more, it's actually going to be interpreted -- in my experience -- by tribal courts. And so it's very, very important about how tribes think through, 'What is the body -- usually to be a tribal court but maybe not -- who actually will have the ultimate responsibility to interpret a tribal constitution?' Because a constitution, where it's written or even where it's not written, people are going to -- in good faith and sometimes in bad faith -- disagree about what the constitutional text actually means. And you're going to have to have a court that actually interprets the tribal constitution and I think that's a very important ongoing process. So it doesn't end when a constitution is actually adopted; one might argue it actually only begins when a constitution is adopted and you try to put those values, those structures actually in place in terms of implementation and then ultimately interpretation.

I thought I might give a few examples about the interpretation part in tribal court cases that I've actually been involved in. The first involves a particular tribe that started to disenroll its members. And one of the questions that came up was, did the tribal constitution actually allow the tribe to disenroll its members based on however it saw fit? A very important question in certain parts of Indian Country. And the question that came up was what does the tribal constitution actually say about the powers of the tribal council to disenroll people? Was it a plenary power constitution where the tribe had all the power and it could disenroll members as it saw fit? Or was it only an enumerated powers constitution that limited -- by the terms of the constitution itself -- the power of the tribe to disenroll its own members? And when that case was decided, that was a key issue in the case. What was the nature of the tribal constitution in the power of disenrollment? Because my experience is very few if any tribal constitutions actually specifically identify the power to disenroll members. And that unfortunately is a very important question about how tribes conceive of who has the power under what circumstances to potentially disenroll members and what would be legitimate grounds for disenrolling members.

In the particular case that I'm talking about -- I'll be happy to talk about the details to anyone after -- is that the court decided -- this was an appellate court -- decided that this particular tribe's constitution was an enumerated powers constitution. There were no expressed powers in this enumerated powers constitution that gave the tribal council the authority to disenroll members. And the court decided that the only kind of inherent grounds for disenrolling tribal members, when there was no expressed provisions for disenrolling members in the tribe's constitution, would be based on fraud or mistake. That is if the tribe could demonstrate that someone became enrolled as the result of a mistake, that is if he was basing on blood quantum and it was just an error in the computation and you could demonstrate that that person became a tribal member due to a mistake, the tribe would have the inherent power to disenroll that person after due process was granted to have the opportunity to have a hearing; or if someone had gained membership through fraud, that they had fraudulently deceived the tribe to become a tribal member. In this particular case we decided that indeed the tribe had the inherent authority to potentially disenroll that person after providing due process. So how you see the overarching structure of your tribal constitution as plenary power, enumerated powers with reserved powers to the people or to the community, I think it's a very, very important question.

Now let me give you an example on kind of the implementation part. Many, many tribal constitutions, in fact almost all IRA constitutions, recognize the power of referendum. Okay, does the tribe actually have to have an implementing ordinance that actually puts that in place? Some tribal constitutions say for example, if you get 300 signatures on a particular matter, that matter has to be provided for a referendum. Is that self-executing or does the tribe actually have to adopt an ordinance to actually put that in play administratively to say that, who do you actually submit that referendum petition to and does the tribal legislative branch or the executive branch, what part of the tribal government if any has the authority to review that referendum petition to see if indeed it has 300 signatures and/or that it has 300 signatures of tribal members and can they do anymore than that? And so many times you have to look at a tribal constitutional guarantee and see if it's actually been implemented.

I'm going to give you another example in this particular context. Again, a particular tribe did have a constitutional guarantee for referendum; the constitution identified the number of signatures that you had to have to get a referendum voted on. And so the tribe adopted an ordinance to administratively review these particular referendum petitions. And in that tribal ordinance they had for example the notion that they could review the number of signatures and somebody working for the tribe could determine whether they indeed were tribal members. But in this particular tribal ordinance it also said that the tribal council, acting through this particular body, had the right to review the merits of...and this was in the context of actually removing people from office. And so the tribe took the position [that] not only could they administratively review to see if it was the right number of signatures, that they had the authority to determine the merits of the claim for removing people from office. And when this came before, a particular tribal court said no, that that violated the constitution. That if there's a tribal constitutional provision for removal, then indeed the council has the right again to set up the requirements to check the number of signatures, etc., but the tribe wouldn't have the authority to review the merits of the allegations in the removal petition because that was for the people to decide when they actually voted in the context of removal. And to me that's just another example of interpretation, that in many situations you're going to have a tribal constitutional guarantee, you're going to have an implementing ordinance, and at some point that's going to be challenge. And the notion is what body -- and in many tribes it's going to be the tribal court -- has the authority to review what a tribe has done in the context of an implementing ordinance, for example, to determine if that ordinance is constitutional, not in the context of the United States Constitution, but in context of the tribal constitution itself? And I think those are very, very important things to keep in mind is this notion of interpretation.

And again, the notion of interpretation can be very, very beneficially enhanced for a court if the tribe itself not only has the text of the constitution, but all the surrounding history when the constitution was adopted. Because the reality is when you finally get the constitutional text, it's in a very short kind of abbreviated form and there might be reasonable disagreement about what a constitutional provision actually means. And if you have the tribe's constitutional history available to everyone and the courts as well to determine what were tribal people thinking when they were considering this particular provision? What were the discussions in the communities? What were people actually saying? And in many ways that background tribal constitutional history is very beneficial and important to the tribe independent of anything that's going to happen in tribal courts. Because that's part of your history, both legal, political, social and cultural. And I think you would want to have that history available to yourselves, broadly speaking, and certainly to the governing institutions within the tribe. And particularly for tribal courts, who at relevant points have to interpret the constitution, if they can have more than the constitutional text before them but the tribal constitutional history about particular provisions, it's going to be very, very helpful and very, very influential. And related to that is that many tribes -- this is particularly true in the bill of rights area, in the civil rights areas -- that they have adopted constitutional provisions that track very closely the text of the Indian Civil Rights Act or the Bill of Rights to the United States Constitution. But one of the questions that comes up when tribes do that is by doing that, does the tribe expect that the federal standard for the very same provision be the standard used by the tribe? And I'll give you an example.

Recently, the Rosebud Sioux Tribe amended its constitution. And one of the things it included in amending its constitution was a tribal constitutional guarantee for the right to counsel. It said that anybody being tried for a criminal offense in the Rosebud Sioux Tribal Court, they would be entitled to be represented by counsel, even if they couldn't afford it -- sort of matching the federal guarantee. Okay, that's the text. There's very little history around it. But one of the issues that came up was, okay: someone's represented by a court-appointed attorney in a criminal proceeding before the Rosebud Sioux Tribal Court. And they're convicted and they want to appeal. And the issue they want to appeal is that they had ineffective assistance at counsel. They said, "˜Yeah, you gave me court-appointed counsel. That person didn't do their job. Am I entitled to get my tribal court conviction reversed because I had ineffective assistance at counsel?' Now in a federal proceeding or in a state proceeding, the right to counsel means you are entitled effective assistance at counsel. And if you have ineffective assistance in counsel -- very high standard -- but if you can prove it, you can get your conviction reversed. So the issue that the Rosebud Sioux Supreme Court was faced was, when the tribe adopted a constitutional amendment providing for the right to counsel, did they intend that part of that right to counsel was the right to effective counsel? And conversely, if you were represented by an ineffective attorney in a tribal court criminal proceeding, should you be able to get your tribal court conviction reversed? A very important, practical question, and there was almost no tribal constitutional history about what the tribal people, what Rosebud people were thinking about when they adopted that provision, which as I said tracks very, very closely the understanding of the Sixth Amendment [of the] United States Constitution.

And again, that raises a very important question that when, and this is particularly true in the civil rights area. When tribes adopt tribal constitutional protections that largely parallel the language in the Bill of Rights to the United States Constitution or the language in the Indian Civil Rights Act, do they intend those standards -- which have now become tribal constitutional standards -- do they want the court to enforce or interpret them in accordance with the federal constitutional standard, which has been incorporated into the tribe's constitution? Or do they have a different tribal constitutional standard in mind? And unless there's important tribal constitutional history about how tribal people are thinking about these guarantees, which sound very much like guarantees in the Indian Civil Rights Act or in the United States Constitution, you need to make your voice heard about how you -- the people who are adopting these constitution provisions -- how you actually want them to be interpreted. And I think that's a very, very important kind of practical thing, is to...(okay, good. I have some more time. I was afraid it was a stop sign up there, that I would have to say I couldn't read but I did read five minutes but I can't read the word 'stop'). So it's important for tribes to be thinking through this implementation piece and the interpretation piece, because however much work goes into a tribal constitution, I think it's inevitable that these interpretive questions are going to come out. If you just look at the United States Constitution or any tribal constitution, these issues come to the forward; it's just natural. It's not a bad thing, it just happens; people in good faith have a disagreement about what a tribal constitutional provision actually means. And I think it's important for tribes to think through that particular piece.

And the last thing that I want to mention is the notion about any constitution only works because people actually believe in it. The United States Constitution, very, very imperfect, very, very imperfect, but it has generally worked because people believe in it, that they conceive its imperfections, but believe that it can be improved through better interpretation, it can be improved through the amendment process. And I think this is a very important issue for tribes, because I think tribal constitutions will only work if tribal people believe in them because if tribal people don't believe in their constitution, they're not going to work. And I think that's sometimes not articulated. Just because you have a constitution doesn't mean it works. People have to believe in it and concede that sometimes it might be wrong, it might be misinterpreted, but you believe in the long haul that it represents what you are about as a people and you believe that it works; because if people don't believe in it, they're not going to follow it.

And one of the things about the United States Constitution is there's this incredible myth that we have always kind of followed it. Well, that's not true. You could go back to two important early cases involving Indian tribes decided by the Supreme Court in 1831 and 1832, which involved the Cherokee Nation and the State of Georgia. When those two cases were argued before the United States Supreme Court in 1830 and 1831, the State of Georgia didn't even show up. They not only didn't show up, they indicated they weren't going to follow the decision. And if that had actually happened, the United States Constitution would have dissipated. It wouldn't have worked, because constitutions only work when people are willing to give them their ongoing consent. And I think that's an important notion, because when you look at any constitution, the question about whether it works is not defined by its text, it's defined by the people's commitment to it. And I think for tribal constitutions I think that's a very, very important, ongoing issue.

And I've seen this in a number of situations in tribal courts that I've participated in when we have made tribal constitutional decisions that have been, in some sense, against the tribe. That's an incredible point for a tribe, for the tribal council to say, 'Well, the tribal court of appeals just said what we did is wrong. What's the tribal council going to do?' It's like a fork in the road. They can say, "˜Forget that, we're not going to follow it,' or they can say, "˜We disagree with it, but we will follow it.' And if tribes take the one fork to say, "˜We're not going to follow that, we're going to get a new court,' well, then the tribe doesn't have constitutional government. They just have kind of a chaos, make it up as you go along. But if you have a tribe that has lost a case in its own court and says, "˜We disagree with this but we're going to follow the decision,' then you have constitutional government. And I think that's an important thing you don't want to lose sight of. You only have constitutional governance when tribal people and tribal institutions agree that they're going to play by the rules because that's how the system actually works. The United States Constitution has worked, for the most part, because people say, "˜We're going to play by these rules.' And I think that's an important kind of cultural and political element for tribes is to measure, in an ongoing way, their commitment to constitutional governance and playing by the rules that the tribe itself has established. And I think that's a very, very important thing to keep in mind.

And I think this is an exciting time, just as we've seen in these two days, the issues that tribes are dealing with and moving forward in the context of constitutional governance. It's a tremendously exciting and challenging time for tribes, and I think a key thing is always this educational component where people feel that it is their tribal constitution, it's something that helps the tribe go forward in its political, social and cultural mission and they have a commitment to it. And I think that's a key thing and that's where it's up to tribal people to make the constitution that you want, to agree to play by its political, social, legal and cultural rules. And I think this is a very exciting time for tribes and I'm honored to be here to provide some observations in that direction. Thank you." 

Deron Marquez: What I Wish I Knew Before I Took Office

Native Nations Institute

Former San Manuel Band of Mission Indians Chairman Deron Marquez reflects on his experience as the chief executive of his nation, from his unexpected return to the reservation to building a sustainable economy essentially from scratch.

Resource Type

Marquez, Deron. "What I Wish I Knew Before I Took Office." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 25, 2009. Presentation.

"Should I stand up now, take a...thank you, thank you. [Because] as a tribal leader, or in this case former, we never got applauses. We always got yelled at, screamed at, told how we're doing everything wrong, so every applause I get I take and go, 'Thank you.' [Because] you didn't know my council. When I was first asked to present here today I jokingly sent back to, I can't remember who it was now, a while ago, the question was, ‘What I wish I knew before taking office,' and I said, 'Tylenol, and how many Tylenols I can take at one time.' Because before I realized what I was getting myself into, it was...Tylenol became my best friend right behind tequila. I think for us...how many of you here are from California? One. Two. Three. Oh, okay, good. Four. Well, California is unique in their situation because its reservations are quite different, as we heard this morning about other reservations being discussed with these very large populations and very large land bases. My tribe, which was established in 1891 by executive order, is a very, very small tribe with roughly 641 acres, roughly one square mile, situated on the side of a hill with about 20 acres of useable land. So we don't have a lot of land to use. It always represents a unique situation when it comes to economic development for our people. With that being said, I was asked to talk about when I first came into the office. What was my expectations, what was it like, what was I doing?

Ironically enough, I came into office in 1999. And at the time I had just returned from a little short stint in Washington, D.C. as part of the Udall group. And so I had my internship in D.C. I returned back from D.C. My family just moved down from San Francisco where I was doing some graduate work. And I was actually sitting in my Ph.D. program, in one of my classes, when my phone started ringing. Now I have two younger kids. So my first thought was something's wrong with my children. So I pick up the phone and it's my mom who just told me that our chair and vice chair just resigned and they're wondering if I would be interested in finishing out the term, which would end in March 2000. Well, to me that was very interesting. And I say that because for myself, I was 29 years old at that time and I never ever lived on the reservation. I used to work there for about a year. In fact, when I left Arizona and went back home for a year because they asked me to come back to work, it got so political that my wife and I left. And probably true and you've heard these stories before, returning back home with an education was I thought a good thing, but at every step of the way my education kept getting thrown in my face. So I basically said, ‘The hell with this,' packed up my family and we left to San Francisco. I went to grad school.

And so now when I come back home, out of the blue, there's this request from a group within the tribe who wants to know if I'll be willing to run for the highest office we have. So it was very confusing to me at that time, especially...like I said, my mother, in 1965 or around there, left the reservation as well. And she didn't return back to the reservation for 30 some years. And she did this on purpose [because] she wanted myself and my two brothers to grow up off the reservation and not grow up on the reservation. People always said, ‘You're lucky not to grow up on the reservation.' I don't know; I grew up in Fontana. For those of you here from Fontana, go watch an old episode of COPS and you'll see Cherry Boulevard and Valley. And about a block-and-a-half away is where I grew up. And so it wasn't that much better. But for my mother, her desire was to have us grow up off the reservation and so we did. And so when this request came in, I was just really confused why they would be asking me, as I just said, who didn't grow up on the reservation, who always had my education basically thrown in my face [because] that's just kind of how it was then.

And so I went home to my wife and I asked and pondered what she thought and what we thought. And my mom obviously raised us with the expectations of never to get involved in tribal politics, find myself being asked to do what we were told never to do. And so for me, what it boiled down to...here's a group of people, regardless of how they treated me and how they thought I was or was not, a portion of them were asking me to fulfill something. And so I turned to my wife and I said, ‘How do you tell your community no? How do you stand there, in good conscience, tell four, five, six people, whomever it may be, ‘No, I don't want to do this?' So I decided to do it. And at that time, I thought it was just going to be until March 2000 and I could go back to my Ph.D. studies and be on my way on that track.

Six-and-a-half years later, I finally returned to my Ph.D. program. I took six-and-a-half years of my life and developed, I believe, a very solid core government practice, economic development practice, and an infrastructure that our tribe has never seen before. When I took office in October of '99, we had seven people working in our tribal government. It was funny [because] when I first arrived on that Monday morning after the elections to introduce myself to my staff, whom I've never met and who have never seen me, I walk into the tribal office -- at that time it was a HUD [Department of Housing and Urban Development] house, it was just a HUD house converted into an office building -- and the very nice lady working as the receptionist; I walk in and she says, ‘May I help you?' I said, ‘Well, I'm here to start work.' And she thought I was a grant writer. So it was interesting enough that it was a nice introduction by way of, ‘No, I am now your boss. Nice to meet you.' The good news was there was only seven people to meet. So it didn't take very long to get my feet wet about who was doing what.

I think what was interesting, when I first went into the office -- and getting back to what I wish I would have known before I started -- was the budget process. The first thing I did as a chair was to freeze all spending because there was no budget. And I could not figure out for the life of me how can you have an operation with no budget? Well, there was a ledger with handwriting about what was being spent where, but there was no set amount. And it was basically free game for those who wanted to spend money. And I also should say that we have a gaming operation, at that time, which opened up back in 1985 -- bingo parlor, some slot machines. They too didn't have a budget, which I found very interesting. Now, when I took over and I froze those budgets, I did make a lot of people very upset because this was a new way of doing business. And they felt that I was stepping on their toes.

I think one of the things that I first realized very early in my days as a chair, is that...I obviously gained the support of my community, who elected me and again who didn't really know me but they still trusted enough in me to put me in office. And now there's a difference between being the elected leader and becoming the leader. And I had to basically encounter the established; I call it the established regime because they've been there since day one. They've actually been on the reservation a lot longer than I've been on the reservation. And so now I had to turn my attention into courting these individuals to start to believe what we were doing was the right thing to do. And what we were doing was putting in a system, a system of a formal process by which things were moved through. And as we all know with anything new comes resistance.

And so when this started to go into practice, the first reaction that a lot of these upper management individuals had from the casino operation was to run to their tribal friends, who then would come to council and start to maneuver with the council about how to get around, for example, creating budgets. Well, I didn't realize at that time how strong these ties were. And one of the first things we did after that was implement a handbook by which we sought to end or at least quash some of the interactions between the community and the employees, which didn't go over very well, but nonetheless it started to change the culture for our community. And it allowed the alliance between employee and tribal citizens to start to come more in line with the tribal community. And interesting enough, they being the directors as well as the general council themselves, started to realize and believe that a system in place is a good thing to have. And once we were able to change this culture and put into practice a system of operation, we started to see things happen.

Now in California we had this big series of gaming initiatives and battles that took place. And once we got through with those initiatives and the ability to operate, one of the first goals of my office was to move away from gaming as fast as possible. We always talk about seven generations. We talked about two generations. Our goal was to get away from gaming in the next 20 years [because] that's when our compact came up and we always believed gaming was only a fad; it's not going to be here forever. And so we started to develop economically. Now the talk this morning was about economic development. For our reservation, given the fact that we have no land, the majority of our economic activities is off reservation. One of them happens to be with the Oneida of Wisconsin and a hotel in D.C. We have hotels in Sacramento, office buildings in D.C. and in southern California. So we had no choice to move this forward, but we had no mechanism to do that, so we had to create a system by which these things can be vetted through and that meant development: hiring development people, hiring lawyers. And as we started to look at the bills through our budget process, we started to realize we're spending a lot of money on consultants. And the more we started bringing the operations in-house the faster, the better and the more crisp these policies began to form. And the community started to buy in, mostly because this wasn't a lawyer sitting in Boston or L.A. or New York; this was a lawyer sitting in our community center who is able to get yelled at just as we are able to get yelled at by the members of our community.

Long story short -- [because] I know my time's short here -- when I took office there was seven individuals working in the tribal government side; when I left my office, there were over 500 people working on the government side. And this is only because, when I came into office, public safety, our security force -- we're a Public Law 280 state so we can't have a police force -- was under the umbrella of the casino, which made no sense to me whatsoever. So we took that over. Human Resource was under the umbrella of the casino and we took that over. In fact, at one time we had five different handbooks under our government operation. And it was schizophrenic about how and what and who -- what book do you follow? So when we started to basically get these things in line with the tribal community, the tribal culture -- and once we got the tribe to buy in and see that this is going to work -- again, the community got to witness this explosion of growth.

Now one of the things that was asked about, ‘If there was something I could have done different what would that have been?' And for me, looking back at what took place, I wish we would have done things slower [because] we did explode. We did a lot of things very, very fast. And with success becomes responsibility, or comes responsibility, I should say. And unfortunately, you guys are familiar with per capita, right? I've been known to say, if you want to see the quickest death of your community, start the per capita system because nothing goes downhill faster than the per capita disbursements. Once these individuals get these monies, what do they have to work for now? It's amazing and I can share these numbers with you because they've been in newspapers. And if you haven't followed it, here is the things I could have and would have and wish I did change, was not allowing per capita to take place at the rate it did. We have now a monthly per capita payment of $100,000. You wake up every morning and you receive these funds for absolutely nothing and it drives me absolutely crazy. And I say this because, if you haven't been following the newspapers in California, if you look at what's taking place on my reservation, it's a huge problem. It's because of these monies we have individuals who are heavily involved in gang activity. Whenever you have the ATF [Bureau of Alcohol, Tobbaco and Firearms], the sheriff's department, and the FBI roll onto your reservation with tanks and raid homes and council sits back -- I'm no longer in office -- and they sit back and they say, ‘Boy, that's just two individuals. There's nothing wrong.' That's, in my opinion, a very sad statement to make.

In fact I'll share a quick story with you. The last council meeting I attended over a year ago now, I asked the question -- so we're talking about disenrollment -- I wanted these members disenrolled. I wanted them out of our reservation, off the reservation, away from our community. In fact, they should have been in jail, but they're not. They plea bargained. I think the tribe's influence was very helpful when it came down to these plea bargains. And I asked the question of one of our elected officials, I said, ‘If somebody walked into this room and started shooting people around this table,' which was our council table, ‘you're saying to me that they should not be disenrolled?' And her words back to me were, ‘Yes.' And so when you have a failure of leadership, in my opinion, as I told my mother, ‘That's no longer my community.' Now I never grew up there, I don't live there; my kids don't go there now. And so with leadership you have to be responsible for what you do. And I think in time, when this new leadership's in place and they are actively not seeking to remedy these situations, and not go out and capture these kids from our community before the gangs capture these kids from our community, that's a huge problem. And it's something that leadership needs to tackle.

Now, in closing I was asked, ‘If there was something I could share with potential leaders, what would I share?' And I think it's kind of what we already heard this morning. As a leader, you have to be a good listener; and as a listener, you have to be a good follower. Being the chair doesn't make you right. As much as we would like it to make us right, it does not make us right. And once I was able to get the buy-in from our employees who -- once they understood they can come to me and share with me, challenge me, tell me 'no,' and then from that process a superior product emerges -- that is something that I think really helped our tribe explode into something that it is today. Unfortunately, it was too much too fast and I wish I could change that, but that's neither here nor there. And my time is limited and I think I'll go ahead and leave it right there."

Frank Pommersheim: A Key Constitutional Issue: Dispute Resolution

Native Nations Institute

University of South Dakota Professor of Law Frank Pommersheim discusses the key constitutional issue of dispute resolution and presents three cases demonstrating how tribes are endowing their constitutions with legitimacy through the careful, thoughtful resolution of disputes.

Resource Type

Pommersheim, Frank. "A Key Constitutional Issue: Dispute Resolution." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

"I plan on leaving a lot of time for questions so we can have a good discussion. But I want to start by saying this, a number of you came up to me during the break asking me if I was Johnny Depp. I thank you for the compliment, but I'm not. But I appreciate that. But I also want to start by giving two examples of the importance of words and vision, because people have said how important words are and how important vision is, and I want to give from my own experience two concrete examples. One is very short but to the point. The second is much longer and had a much more profound influence on me. The first is, I think a number of tribes are aware that they have drug courts, that there's good funding that comes from the Justice Department and from the Bureau of Indian Affairs not only to tribes but to other communities around the nation to deal with the issue of drugs. And it looks to try to work with people who have drug problems and not focus so much on their criminal behavior. A very, very positive thing, a good thing. The federal government is actually trying to do a good thing in that way. But the people at Rosebud [Sioux], they think it's a good thing, but they didn't like the term drug courts because ‘drug court,' it sounds negative. And so what they did without anyone's permission, they just changed the name to ‘wellness court.' So the Rosebud Sioux Tribe has a wellness court that focuses on working with people who have committed crimes and have been involved with the use of drugs. But just think about that for a moment. To me that's a real profound difference between working with a drug court and a wellness court, because it shows the commitment of the people at Rosebud, that they want their members who have committed crimes who do have drug problems, they want them to be well. It's just like one word, the difference between ‘drug' and ‘wellness.' To me, it makes a tremendous amount of difference. And I actually see it in action, because when I listen to the tribal trial judges at Rosebud, when they talk about the wellness court, they talk about it with pride. They talk about how tribal members are really being healed and they're really changing. And I think part of that is because the drive is to get them well, not to punish them, not to be indifferent to the wrongs that they may have done, but to really focus on the good things. And I think one of the things to keep in mind in the context of tribal institutions in the courts, where I have most of my experience, or in a context of constitutions, is without being naïve, without being simple minded, to focus on the good and to focus on the positive.

The other example I want to give is a little bit broader example, because people are talking about sort of the importance of vision. And I think sometimes the word ‘vision' is kind of overused. It's a good word, it sounds great, but what does it actually mean? And I want to give one example. And again this comes from Rosebud. Thirty-five years ago, 40 years ago, before there were community colleges on most reservations, there were none. But there was one man at Rosebud by the name of Stanley Redbird, and Stanley had the vision that he wanted to start a college on the Rosebud Sioux reservation. No federal funding for it, no one had even really heard of that idea. But Stanley said, ‘We should have a college on the reservation. Why should people from Rosebud have to go off the reservation to go to college?' Well, it seemed obvious to most people. Rosebud Sioux reservation is in the middle of a very rural place in South Dakota, extremely impoverished, and you would think or most people would think, ‘You can't have a college here.' But Stanley had the vision, and he persisted. And he himself was not a college graduate. He himself was not even a high school graduate, but he persisted in his vision, and gathered around him a number of Native and non-Native people and said, ‘We can make this happen.' Without funding, without accreditation, but he had the vision, and his vision energized people, that you could do a good thing. I think that's a tremendously important thing, to be able to be energized by a vision to do something good, and in the context of starting a college. It started very slowly. Today it's fully accredited, offers not only AA [Associate of Arts] degrees, offers bachelor's degrees, master's degrees, [and] is getting certified for the first Ph.D. to be offered by a college on a reservation. Tremendously powerful. But the second part of that which kind of brings together a number of themes that I was hearing during the day is, education for what? Regis [Pecos] talked about Head Start. Head Start for what? And it's a very important question. Everybody's in favor of education, except some -- oh, this is recording -- except some Republicans. It's a joke. The thing is, is education for what purpose? And Stanley's vision was sort of the two-road approach. He wanted people educated on the reservation to know their tradition and culture, not just as something they knew, but something they could incorporate in their professional lives as teachers, as counselors, as lawyers, as doctors, but also not to ignore the good things that also come from the dominant society. And so the notion was to strike a balance, a creative balance. Hence, the two-road approach. So the people who went to college at Rosebud, at Sinte Gleska University, would know the best of the two roads. And so it was yes, education but education that didn't mindlessly accept the dominant society's view of education that meant just non-Indian, non-Native ways. That was unacceptable to Stanley and the people he gathered around him. So oftentimes there is a convergence at a high level of abstraction between Native and non-Native people about important issues, including constitutions. But one of the things you have to think through is below the abstraction, is what do you really want? And this has been one of the themes that I've been hearing all day is, what do tribal people want in their constitutions? How can you think about a tribal constitution? And Regis [Pecos] and Joe [Kalt] and others have given some very important ways to thinking about it.

I just want to add one or two things that are much more sort of practical in a way. One of the ways of thinking about law -- and I always have this for my students whether they're law students or not -- is you just ask, ‘What is law about?' Because I'm a teacher, I'm tempted to call on Bob [Hershey] to see if he could give me a good definition of what law is. But to me, what it is, it's about two things. It's about power and it's about values. Every law that exists, knowingly or unknowingly, is trying to support a particular value, and because it is the law, to a certain degree it has power behind it, because the power is what makes us obey the law even if we don't want to. So whenever we think about law -- there are good laws, there are bad laws, they cover the range, the continuum -- but the important thing always to ask ourselves is, ‘What is the particular value in that law? And what is the power that that government -- whether it's a tribal government, state government, provincial government, United States government -- that uses to enforce that particular value?' And so when tribes are thinking about constitutions, to me those are the two most important elements. What are the values? And that's the theme we've heard most of today -- that constitutions are about values. Absolutely critical, absolutely kind of central, but the other part, and Joe mentioned this a little bit, is sort of the power, because one thing that constitutions do -- and sometimes may or may not make you uncomfortable in talking about it this way -- is what? It distributes power, and that's just the reality of what a constitution is supposed to do in part -- to distribute the values, to distribute as it were the sovereignty, that a nation has to its constituent forms of government. And so when you think about constitutions broadly, those are the two things I would emphasize. What are the values that you want to see recognized, enshrined and supported in your constitution? And I think in many tribes there's quite a bit of convergence about that. Where there's more divergence is how you're going to distribute the power in the government to recognize and carry out and establish those values. And I think that's a very, very important kind of balance to keep in mind. How do you want to distribute the power?

When you look at that, roughly speaking, there's two ends of the continuum to look at. One is, traditionally, inasmuch as any tribe knows its true traditions, how was power distributed in your tribe traditionally? And two, is that still possible in some way today, in whole or in part, or not available at all today? Then the other model that's out there, which I think is a good model but it's a bit dangerous, is the model of the United States Constitution, the three branches of government, checks and balances, separation of powers. Well, they're good things, kind of, but I'm going to have a little asterisk next to them, because they're not inherently good unless that's what the people want. And one thing that's also true, because we were talking about constitutions today in terms of a lot of pressure, good pressure, from tribal members saying, ‘We want to improve our constitutions. We want to make them better.' And that's a tremendously good, positive and important thing. But I think it's also true, and one note that hasn't been struck, is that there's a lot of pressure on tribes to amend their constitution that doesn't come from within, but comes from without. And this is particularly true in the context of economic development and Joe touched on it a bit. Today in South Dakota, routinely when businessmen want to do business on the reservation, you know almost the first thing they ask, ‘Does the tribe have a separation of powers?' Now most businessmen, when they say separation of powers, if you could ask them a follow-up question, they themselves don't know what the hell the separation of powers is. It's just what their lawyers tell them. And so part of the deal about the separation of powers is, businessmen aren't really interested in the separation of powers, they are just interested, justifiably so, they want a business atmosphere where they can make money and where the rules of the game are predictable. That's what they really want. And they've been told that separation of powers sort of guarantees that. And in some ways it does and in some ways it doesn't. So I think tribes have to pay close attention not only to what's coming up from themselves and their communities but certainly in the states and certainly in South Dakota, tribes need to be alert to -- not necessarily a bad thing -- but they need to be alert to the pressures that come from the outside that say the tribes have to amend their constitutions, particularly to have separation of powers, to create a good business atmosphere. That's fine. But tribes have to realize where the pressure is coming from and what they are reacting to, what they are trying to achieve. That is again, what are the values? And if one of the contemporary values is economic development, which it is probably in every tribe in the country, then it's a legitimate question, Joe Kalt was suggesting this, that a tribe needs to ask itself. What is it that we can or should have in our tribal constitution that will enhance economic development? And I think the major thing in a tribal constitution -- any constitution -- that enhances economic development is to have a structure and distribution of powers which creates a fair, predictable rules of the game, rules of the road. So if somebody's going to come to your reservation and do business, they're entitled to know what the rules of the road are. And if they don't like the rules of the road on your reservation, fine, they can go someplace else. But they are entitled, I think, to know, and when we talk about responsibility, arguably the tribe has a responsibility to people who are coming and perhaps doing business, tell them what the rules of the road are and what their constitution says or doesn't say about economic development. So I think it's important to keep track of these two streams of pressure for constitutional reform, because in my view there definitely are these two streams. Not just one stream from the people themselves, but there is this outer stream, and tribes need to kind of thread their way through that.

The other thing I wanted to talk a little bit about -- before getting to this dispute resolution issue -- is this notion of to me two critical things are, and this note has been kind of mentioned a few times as well, is legitimacy. Any constitution will only work because it's perceived as legitimate by the people who are subject to it, that you accept it. Bush v. Gore is being used as an example. A terrible decision, an outrageous decision in which then Chief Justice [William] Rehnquist himself said in the aftermath, ‘This case can never be used as precedent in any other case.' I mean a fairly frank admission that the decision, in my opinion, blatantly political, but most American citizens kind of shrugged and said, ‘Okay. A bad decision, but we're not going to abandon a constitution.' Why? Because there's a longstanding commitment to it as being legitimate. Legitimate not because of its perfection, arguably legitimate because of its imperfection. Because if any of you actually read the constitution, know its surrounding circumstances, it wasn't perfect at the beginning. I mean, the United States Constitution recognized and accepted slavery. How could that kind of constitution be a model for anyone if it recognized and legitimized slavery? And so it was imperfect. And actually although it's kind of slidden away, there were some good things in the Constitution from my point of view about the relationship of the United States, the fledgling United States, to Indian nations. There was a great deal of respect actually in the Constitution as originally written for tribal sovereignty. There's a recognition in the Indian Commerce Clause that Congress only had the authority to recognize and regulate trade with Indian tribes, not to regulate the trade of Indian tribes. The Constitution recognized that the fledgling United States didn't have the authority to go into Indian country. It said basically, ‘You're sovereign, we make treaties with you. You're sovereign, you're separate.' Commerce is important to us, and so in our distribution of powers, that power was granted to Congress. So it was Congress who had that authority, and also an important issue in the context of the Constitution was that there was tension and battle between the fledgling federal government and the states who would have authority to deal with Indian tribes. The United States Constitution placed all that authority in the federal government, none in the states. And within the federal government, they gave all that power strictly in the area of commerce to the legislative branch. But this segues into the next thing about interpretation. Unfortunately it was a case decided by the United States Supreme Court in 1903 called Lone Wolf v. Hitchcock and all that stuff that I just said, the Supreme Court at that time just leapfrogged the plain meaning and the historical backdrop to the Indian Commerce Clause and said somehow, ‘Congress has plenary authority in Indian affairs, complete, untrammeled authority.' But it takes some work to get that from the text of the Constitution and from its history. And so this notion of legitimacy is absolutely central.

And when I think about legitimacy, I think there are three components to it in the context of Indian Country. Legitimacy comes primarily from the people. Tribal citizens who need to be consulted and hopefully participate directly and often in developing their constitution and/or amending that constitution when it's necessary. Because I think the ultimate source of power for any sovereign is ultimately not really in the government but in the people. Because the thing that's often left out when we talk about or learn about the United States Constitution in basic civics is the power comes from the people, and the people reserve that right to make changes in the Constitution, to amend it, to bend it however necessary to meet contemporary standards. And so my understanding in working with tribes in South Dakota that they have basically the same view is that the power is ultimately in the people, not in the government. And so one important component of legitimacy comes from the people. So when a constitution is being discussed and when it's ultimately voted on, how many tribal people are participating?

And two is part of that, the second group that's important, is the leadership. Official, unofficial, elected, not elected, traditional, non-traditional, people who are perceived as leaders. This is what leaders do. The best definition I ever heard of leadership is, leadership is managing learning in a group. That's what leaders do. They manage learning in a group, whether it's in a family, whether it's in a classroom, or whether it's being chair person of the tribe or president of the United States. And so authentic leaders -- and this idea of legitimacy -- they're the ones that manage in a good way the learning that takes place. That's what good leaders do, whether elected or not, none of that.

And then finally, I don't know if Joe's still here, Joe, no, Joe's not here. I'm coming to the defense of lawyers. Yes, indeed. The third group that is important, and I mean this quite seriously and I'll explain it, that lawyers are important. No, strike that, good lawyers are important, because it is true that ultimately in the modern world, constitutions at some point have to be drafted and written in a very, very thoughtful, complete, precise way, and the persons on balance who should have those drafting and expressive skills are lawyers. But it's also important to remember -- and I always tell my students this -- the people who have caused the most destruction in modern Indian law today are largely lawyers. Because lawyers, I tell my students, if a tribe is represented by a lawyer, and the tribe asks the lawyer, ‘Can we do this? And the lawyer says, ‘No, you probably can't do it because you haven't checked with the federal government.' That lawyer should be fired. He's just engaged in malpractice. But on the other end are lawyers, a tribe asks, ‘Can we do this?' And those lawyers say, ‘Well, you can do anything, you're sovereign.' I also believe they should be fired, because you can get people off the street to give you that kind of advice. It takes a lawyer with understanding, nuanced understanding, of what the tribe wants to do. But it's not a blank slate. History is out there. It doesn't mean you cave in to history, but good lawyers can help tribes navigate the treacheries of past and current history and their interaction with the federal and state governments. I don't believe you can pretend that that reality doesn't exist, and that's what good lawyers can do. They can help. They never tell tribes what to do, but they can help tribes get from where they are to where they want to be in the best possible way that avoids difficulty down the road because tribal attorneys who say, ‘You're sovereign, you can do whatever you want, now pay me and I'm going to leave.' And the tribe is left with that legacy when that advice turns out not to be too reliable in today's real, complex world. So I think lawyers are important. But more importantly, good lawyers are important. And good lawyers in Indian Country, I think there are two essential characteristics that they need. They need to be good lawyers, they need to be smart, they need to have the skills to navigate the law and to draft, but they have to understand the tribe they work for. They have to understand its history and its culture and perhaps more importantly, this is a dangerous word, they need to have affection for the people they work with, because without affection I don't think you can really accomplish the important things that tribes are kind of struggling to do. So this thing about legitimacy is absolutely essential, because it will happen -- and I'm going to give some examples in a minute -- that tribes are faced with very difficult questions, and the notion is, once a decision has been made, a tribal constitutional decision has been made, is there enough legitimacy -- that as Joe was suggesting -- if you're on the side that lost or if you're on the side that doesn't like the result, because it's legitimate, will you accept a decision that you disagree with? It's easy to accept decisions that you agree with. That's easy. We can all do that. But it's very, very difficult sometimes for citizens, particularly when a constitution is new, is to be able to accept decisions that you disagree with. That's what legitimacy is. It means that the constitution and its values and its structures are more important than your individual feeling or the feeling of any particular group with the tribe. Because without a sense of legitimacy, constitutions are just a bunch of false promises, and I guarantee that to be true. If a constitution doesn't have legitimacy, it's false, because as soon as the tribe faces its first most difficult decision, if there's not legitimacy, the constitution will be finished. Because the constitution really only works, any constitution only works is because it's legitimate. This is what oftentimes we mean by -- though it's a phrase that's been overused and misunderstood -- about the ‘rule of law.' You always hear that phrase in Indian Country. Do tribes have the rule of law? Actually, you hear it more in sort of foreign policy discussions. Whenever we're helping out foreign nations, the two things that are always parroted is, ‘We want to bring the rule of law to this country.' Well, it's sort of a yes-and-no proposition. If you're bringing bad law to those countries, what good is the rule of law if it's bad? So the notion about getting the rule of law is that your commitment, as others have suggested, both from your mind and from your heart and from your tradition, is that you believe enough that you can accept a decision that is contrary to your own interests. And without that, I think constitutions are yet another set of false promises. So legitimacy is key, and it doesn't just happen one time as you're going forward to the constitution, but legitimacy is always at risk. You don't learn this in high school, but in the context of American history there have been instances involving the United States Constitution when its legitimacy was actually at risk, and no guarantee that it was going to work. And strangely or not strangely enough, the first genuine constitutional crisis in American history involved two Indian law cases decided by the Supreme Court in 1830 and 1831: Cherokee Nation v. Georgia and Worcester v. Georgia. Most of you have probably heard about them. But the background of those cases were the state -- can you imagine this today -- in both of those cases the State of Georgia did not even appear to argue before the Supreme Court? Can you imagine that, that one of the constituent states to the Union in early days of the Constitution said, well, I won't use that word, but I'll use a nicer word and just say, ‘We're not going to appear before the United States Supreme Court, because it doesn't have any legitimacy to tell us, the State of Georgia, what we can or can't do in Indian affairs.' So you had amazing tension in those cases between the federal government and the State of Georgia. But you had even another tension. You had a tension between the executive branch and the judicial branch. You know, when the Supreme Court makes a decision, everybody plays by the rules, it's just enforced. But what happens -- particularly when it involves someone who's in prison -- if you don't play by the rules? Worcester v. Georgia, United States Supreme Court said to the State of Georgia, ‘You didn't have jurisdiction to convict these two non-Indian ministers who were preaching on the Cherokee Nation reservation and you wrongly convicted them. You have to let them go free.' And who would that be carried out by? Then-Chief Justice Marshall didn't go marching to the capital of Georgia to let those folks out. That's the responsibility of the executive branch of the federal government. That's the Marshals Service. Ultimately, it's the President of the United States. And what did the then-President of the United States say? Some people think it's apocryphal, but President [Andrew] Jackson said, ‘Whatever. Chief Justice Marshall has made his decision, now let him enforce it.' Meaning that the executive branch wasn't going to support a decision of the United States Supreme Court. Do you think the republic could endure if states felt free on a regular basis to not appear before the United States Supreme Court? Do you think the republic could survive if the executive branch on a routine basis said that it would not enforce judgments of the United States Supreme Court? And the answer is no. Fortunately -- or maybe unfortunately depending on your point of view -- is that what happened is that the court went into recess, President Jackson realized the republic was becoming unraveled. South Carolina passed the resolution they were going to leave the Union. And so he realized that he couldn't be, refuse to enforce a judgment and let the State of Georgia get away with its disrespect for the Supreme Court. And so he convinced the Governor of Georgia to pardon those two defendants who had been convicted. So right from early Indian law history there was a genuine constitutional crisis about whether the United States Constitution had enough legitimacy to survive that crisis. And it's important to realize I think, without inviting it, that sometimes tribes will face crises of their own about the meaning of their constitution. But my thinking is that you have to hold fast to the values and the structure that you can accept the decision, work with it, even when that decision seems to you to be against your interests and may seem to you quite wrong as a matter of constitutional interpretation. Because without legitimacy, constitutions cannot continue to function and that's the most difficult thing to establish at the front end, and it's the most difficult thing to maintain. And so it's important for tribes as they go through adopting constitutions or revising constitutions to insure that they have legitimacy. Legitimacy means what? Talking all the time, being respectful [of] what others say, particularly others that you disagree with, and that they're respectful of you and that you remember that you are united in your support of the values, you're united in the support of the structure, even though you might disagree with a particular decision.

So let me conclude by giving three examples and three cases that I served on the appellate courts of these three tribal nations. The first case comes from the Saginaw Chippewa in Michigan. People talked a little bit today about one of the critical issues for tribes in the U.S. is membership, enrollment. But nobody talked about the flip side of that and the flip side is disenrollment, a very painful, a very powerful force within a number of tribes. And so a case came up at Saginaw where the tribal council there began to disenroll people and a number of people thought it was just wrong. And so they brought a suit in tribal court raising the question, a very important question, ‘What power does the Saginaw Chippewa tribal council have to disenroll people?' It's a very powerful, though perhaps painful, question. And it would be a good question for all of you to ask yourselves, ‘What power in your own tribe does your constitution say about who has the power to disenroll for what reasons under what circumstances, or does it really address the issue at all? And so the case at Saginaw, and I'll simplify it a little bit, the view of the tribe was -- represented by an excellent attorney -- and the view that the tribe had plenary power to disenroll people for whatever good reason it thought. The challengers -- also represented by an excellent attorney -- took the position, ‘Well, if you look at the tribal constitution, it's an important, really basic question, what is the structure of this tribe's constitution?' And what it meant by ‘the structure' is this, and I think it's a very important question for every tribal member to ask about his or her constitution. And it is this: Tribal constitutions structurally, from an overall point of view, can be organized into two categories. One is what we might call a ‘plenary power' constitution. A plenary power constitution means in the text of that constitution, all the power of the tribe is granted to the tribal government and none of that power is reserved directly to the people, and there are tribal constitutions that do this, I've seen them. There are also many tribal constitutions, in fact probably more tribal constitutions, that are what I would call a delegated powers model, in which the power of the tribal people is delegated in a specific manner to the tribal government itself, and all powers not delegated or enumerated to the tribal government are reserved to the people. And I think, structurally, that is probably the most important structural question for tribes. All the power to the tribal government, or only some and the rest of it reserved to the people. And for those of you who are members of tribes that have tribal constitutions, look at your tribal constitution or look at it again and see how you would answer the question about whether it's an enumerated powers constitution or whether it's a plenary power constitution. So that was one of the big questions in the Saginaw case. And we reached the conclusion -- we being the court -- reached the conclusion that the Saginaw Chippewa tribal constitution, which was adopted in a revised edition in 1986, was an enumerated powers constitution, and the tribal council only had the expressed powers that were set out in the constitution. And so we went then to those enumerated powers, and there was some limited, direct recognition of the power of the tribal council to disenroll people. But they were very limited powers. They were limited to members who were enrolled in more than one tribe, and it also mentioned that they had the power to disenroll people who had been adopted into the tribe and their parents divorced. It didn't seem like the constitution gave the tribal council any broader power. Then the question was, ‘Does the tribal council have any inherent powers to disenroll?' ‘Cause that's another thing that comes up sometimes. It comes up with the United States Constitution, sometimes comes up with tribal constitutions. Even though it's not specifically mentioned in the constitution, does a tribe under some circumstances have inherent power to do X. And we decided in the Saginaw case that the only inherent powers that the tribal council had to disenroll people were for two reasons. If it could be proved that a person became a tribal member through fraud. We took the position that a tribe must have the inherent power to disenroll people if they can prove that those people became tribal members through fraud or mistake, because sometimes mistakes happen in the context of enrollment, particularly in the context of blood quantum, ‘cause blood quantum ultimately is what? It's ultimately a math problem, and so if you have somebody working in the enrollment office that's not that good at math, they might have got the fractions wrong and someone gets enrolled not because of fraud, but because of a mistake, and that's the position that we took. But that's not quite the end of the story, because it all doubles back to legitimacy. We made that decision and we said that the people who had been disenrolled had been disenrolled improperly, and if the tribe was going to disenroll them, they had to have another disenrollment ordinance, they could only do it for the grounds that were identified in the constitution and they had to provide due process, notice and the opportunity to be heard. This is very important from a tribal judiciary point of view. It's how you say what you say, because when we made that decision, the tribe might have said what? They might have said, ‘Go fly a kite.' They might have fired us on the spot.

So when a tribal court makes an important decision interpreting the tribal constitution, this is where legitimacy comes into play, because sometimes tribes can, will, although they're less likely to these days, is to say, ‘No, we don't recognize you the tribal court, and we're just going to go about what we've been doing.' And so there are two things there. One is -- and I'll give another example in a moment -- is how well tribal decisions are written, how thoughtful they actually are, how familiar they actually are in talking about tribal tradition and custom, because in the context of the Saginaw case, we looked back to the history of enrollment for the Saginaw Chippewa Tribe. It had a lot of adverse, troubling conditions imposed by the federal government that created a very difficult situation in Saginaw in determining members and it wasn't really the tribe's fault. It was the fault of the federal government who created these kind of crazy rules. But we understood that and we said that. And we tried to show respect to the tribe itself -- meaning the executive branch -- and to the plaintiffs and to tradition and custom. We talked about unity. We talked about respect. And they're just words, but you can make the power of expression, you can use the right words the right way and you can make a powerful expression. And so -- and this is my opinion and I'm not neutral because I worked on that case -- the tribe didn't like the decision. They definitely did not. But what did they do? They accepted it. You could see it in the tribal newspaper. It's incredible. It's like the statement in the tribal newspaper reads like this, ‘We disagree strongly with the decision of the Saginaw Chippewa Tribal Court of Appeals, but we're going to follow it.' That's legitimacy. And so tribal courts themselves have a powerful responsibility, in the way you write your opinions, to show respect, to try to lead the way even when one side wins and the other side loses, is to try to show that there's a way of harmony, there's a way of respect. It might not always work, but you have to do it, I believe, and all good tribal judges and tribal appellate justices do that. You kind of think in the context of respect, and it makes a difference.

I'll give one other...I'll give two more examples. One was a case from Cheyenne River [Sioux Tribe], it's actually an ongoing case. Issue came up at Cheyenne River, because they have a provision in their constitution about redistricting. Their constitution -- as most tribal constitutions [do] -- say that tribal council members will be elected from certain districts. Well, at Cheyenne River the constitution was adopted, it's an IRA [Indian Reorganization Act] constitution. It was adopted in the ‘30s. And so some people were saying, ‘Well, the population and demographic patterns in those communities have changed dramatically and therefore there should be redistricting.' And interesting enough in the Cheyenne River Sioux constitution, it actually expressly says that you can amend the constitution and so you could amend for redistricting purposes, but it also said the tribal council shall redistrict. And arguably the tribal council hadn't redistricted, so there was a challenge saying that the tribal council wasn't carrying out its constitutional responsibilities to redistrict the reservation and I'll just cut to the interest thing. The plaintiffs, the challengers, the relief they were asking for, they wanted the court, they wanted the Cheyenne River Sioux Tribal Court of Appeals to make, to order the Bureau of Indian Affairs to supervise the next election or, in the alternative, they wanted the court itself, the Cheyenne River Sioux Tribal Court of Appeals, to monitor and oversee the election. And the members on the court said, ‘We're not going there. What does that have to do with self-determination to ask the Bureau to come in and supervise an election?' And so despite ruling in favor of the plaintiffs, the challengers, we didn't adopt their proposed remedy. We just said -- and again easier said than done -- we just said that we expect the tribal council, and we set a timeframe, to go forward and come up with a redistricting plan. And so there, there's another sort of cautionary note, that even when you rule in favor of one party in the context of a constitutional dispute, be careful about the remedy that you order to be implemented, even when it's requested by the parties. And again, it takes a certain kind of sensitivity to that.

Last example -- this kind of stuff hasn't been mentioned at all today -- and I do want to mention it and then I'll finish. This case comes from Rosebud. A lot of tribes in their constitution -- hasn't been mentioned at all today, maybe Joe mentioned it quickly -- but there's a lot of pressure internally and externally on tribes to insure in their tribal constitutions that they have Bill of Rights protections, that there is the right to free expression, free exercise of religion, all that. But also because many tribal constitutions in their Bill of Rights section -- if they have one -- is modeled after the Indian Civil Rights Act. And so oftentimes they'll be like sort of what we call Fourth Amendment protections against unreasonable search and seizure. And so when you have that kind of language in a tribal constitution that is a direct replica of the Indian Civil Rights [Act] protection, this is just an example, against unreasonable search and seizure, and that language also models the Fourth Amendment, and then a tribal member is a criminal defendant in a tribal court prosecution, he wants to challenge his arrest. She wants to challenge the arrest as lacking probable cause. They want to say that evidence was seized impermissibly, and that the evidence should be suppressed and their conviction should be reversed. And this is a very important question for tribal appellate courts. When you have Bill of Rights-like language in the context of stuff that applies in the context of criminal prosecutions, does the tribe intend that that language -- and I'm just using the Fourth Amendment -- do they intend that it be interpreted just like the Fourth Amendment to the United States constitution, where there are warrant requirements, the exclusionary rule, all that kind of stuff, or do they mean something different? And if they don't have anything in the constitutional history or discussion when they adopt that language, they're not providing very much direction to the court itself about how it, that is the people, think about these constitution-like protections which have very similar language to the United States Constitution and oftentimes the Indian Civil Rights Act. And the tribe needs to speak -- when they're talking about individual rights because my experience has been with the tribes in South Dakota, tribes are interested in individual rights. To me, it wouldn't be accurate to say that tribal people are all sort of communal, they have no sense of individual rights. It's a balance, and the people who are adopting the constitution, if you're going to have that kind of language in the constitution, you need to provide some background for the court about do you mean just like the Fourth Amendment or not quite like the Fourth Amendment? So whenever you're copying language I guess, borrowing language that comes from the United States Constitution or from the Indian Civil Rights Act, it's really important that there be discussion, documents that show is it just the values that you're interested in, fairness and privacy, or are you inclined to want the exact rules that come from the Fourth Amendment to the United States Constitution, particularly in the context of prosecuting tribal defendants? If you believe that exclusionary rules should apply, that means X number of tribal convictions are going to be reversed. Is that where the tribe stands as a matter of value or not quite, [it] may have something else in mind.

So those are just sort of three examples in three different contexts. Disenrollment, district representation and the rights of criminal defendants, where those are from three real cases [from] three different tribes that I've worked with in terms of interpreting. They're all about interpretation, because that's ultimately what courts do, because however well a constitution is drafted, and the well drafted the better, no doubt about it, but ultimately there are going to be issues of interpretation. And so you have to think about interpretation. And one of the ways the tribal people can aid the court ultimately in interpretation is not just simply adopting the constitution and the language but the stuff that goes with it. Are there tribal constitutional debates, meetings, that are recorded that become part of the tribe's constitutional record, so that when a case comes up and people say what the people really meant was X, that there is testimony, oral history reduced to writing about how tribal people -- the people who give the constitution legitimacy -- how they were thinking about that particular provision of a constitution. Because it's totally inaccurate to think that a constitution is simply going to be interpreted based on the bare bones text that's in the constitution, however well it's been drafted. And so to me two key things that bracket constitutional thinking is legitimacy now, forever and always, and interpretation and an ongoing kind of commitment of tribal people to their constitution. And it might need revision at certain times. The United States Constitution has been amended any number of times. Very few constitutions survive and have authenticity and legitimacy without the necessity of being amended at certain times. And again it's a very powerful notion in terms of education, because education is a very valuable component that gives legitimacy. Because too often the education that people get in high school and even in college about the United States Constitution I don't believe is very effective or fair, because it's too, it's too self congratulatory about the constitution is great, we're great, duh. There's got to be more to it, because a long-lasting constitution is not inherently great. It takes legitimacy, it takes mistakes, and that's what tribal people themselves I think have to realize, and your children and grandchildren, about it's an ongoing process to be educated to think about any constitution, but particularly a tribal constitution.

Taylor Keen: The Disenfranchisement of the Cherokee Freedmen: Assertion or Abuse of Sovereignty?

Native Nations Institute

Taylor Keen (Cherokee), a former member of the Cherokee Nation Council, discusses the stand he took against his nation's recent decision to disenfranchise the Cherokee Freedman. He offers a convincing argument against the move, explaining that taking away the citizenship rights of the Freedmen solely based on the criterion of race contradicts Cherokee cultural values and threatens the long-term viability of the Cherokee Nation's sovereign rights.

Native Nations
Resource Type

Keen, Taylor. "The Disenfranchisement of the Cherokee Freedmen: Assertion or Abuse of Sovereignty?" Nation Building: Governance and Development. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. November 19, 2007. Presentation.

“Manley [Begay], thank you, once again, and thanks to the University of Arizona and the Native Nations Institute. It’s an honor for me to be here today. This is my first in Tucson. My first time down this neck of the woods and it’s beautiful place. And I said it’s an honor for me to be here.

Well, the topic I wanted to visit with you about today was certainly something I never thought would come to pass. I’ve spent all my life, I’m Omaha on one side and Cherokee on the other and I grew up in Tahlequah, Oklahoma, which is the capital of the Cherokee Nation. Well I’d like to say, all my life I’ve been in Cherokee; I’ve been around it. There in Oklahoma, it’s kind of a unique story. Many of the tribal nations, we weren’t allowed to govern ourselves much after statehood, after 1907. We were this close to coming to termination. It was only because of energy reserves there in Oklahoma -- oil, natural gas -- that we were able to maintain a collective tribal voice. But for all intents and purposes, the laws of the Cherokee nation were rendered null and void.

So in the late 1960s there was a resurgence primarily came out of the Office of Economic [Opportunity] under President Lyndon Johnson -- the anti-poverty programs -- and thus began the sort of rebuilding of many of the tribal nations there in Oklahoma. My father, the late Ralph Keen, he was one of the first, he was the first modern employee of the Cherokee Nation and spoke of terms such as sovereignty, years ago before it certainly was politically allowable. I hate to use those kind of terms today. A lot of us enjoy full tribal sovereignty. We’re, in many senses, thriving today. But in those days, it was not something that was commonplace, especially for the Five Tribes in Oklahoma. So we literally had to begin the rebuilding process for our Cherokee Nation piece by piece. And that began with the Principal Chiefs Act in 1973 and basically allowed for the Five Tribes in Oklahoma to be able to have public elections for our chiefs. And then slowly through case law and subsequent legislation, we were able to rebuild our governments.

Today, the modern day Cherokee Nation, we’re the second-largest tribal nation in the United States, second to the Diné. We have over 265,000 tribal members. All aspects of our government are alive and well and sound. From the federal perspective, we leverage over $300 million into Northeast Oklahoma, we provide almost 7,000 jobs and have a thriving gaming industry. The story that I want to talk about today begins and ends in the year 1866.

What was the role of the Cherokee Nation in the Civil War of the United States? Anybody know?

The majority of the tribes in Oklahoma, including all of the Five Civilized Tribes -- that term comes from treaties we signed, a treaty with the Confederacy, and thus sealed our fate. Now, regardless of what the desires for Northern or Southern sympathies, and there were both within the Cherokee Nation -- arguably there were many with sympathies towards the Union. The reality of the situation is that out on the east coast was where the primary battles were happening and areas such as Kansas and Oklahoma were basically left unguarded. Certainly, the Confederacy had a stronger presence there and actually had a cunning secret weapon and that was Albert Pike. And he was a former federal Indian agent for the United States and then joined the Confederacy and became the lead negotiator with a lot of the tribes. And the deal that they promised to all the tribes in Oklahoma was quite profound, actually. The Confederacy knew all the wants and the weaknesses of the United States government and promised all the Five Tribes many of those enhancements. And that was recognized court systems, the federal court system within their jurisdiction, they promised to educate many of our youth in the military academies, and that we’d have a strong voice in what would become the Confederacy of the United States. So, having said that, the Cherokee signed a treaty in 1866. I mean signed a treaty with the Confederacy and upon the Confederates being defeated we had slaughtered ourselves as a people. Many people cite the Trail of Tears as the worst tragedy for the Cherokee Nation and it paled in comparison to the amount of lives lost in the Civil War. The Trail of Tears, somewhere between 2,000-4,000 Cherokees died. And the Civil War, it was 2-3 times that amount and we slaughtered one another. Very arguably, our entrance into the Civil War was old feelings that we harbored on how we dealt with the Trail of Tears. It’s all about the Ross party and the Treaty party and those culminated, continued in the battle afterwards.

But at the conclusion of the war, because we had signed a treaty with the Confederacy, the Cherokee Nation ended its legal continuum with the United States -- we had lost our standing. So, we were forced to come back to the table, and without question in a weaker position with the United States, but we wanted to maintain that federal relationship for the good of our own people. In doing so, the United States was in a much stronger bargaining position. What is now Oklahoma was formerly Indian Territory and the Cherokee had a majority of that land base. The whole northern portions out to the panhandle, those lands were ceded back to the United States in exchange for money. Our coffers were drained and we were broken as a nation. So part of the reparations for signing the treaty with the Confederacy, the United States asked several things. They gave us some money, we ceded up land, and to deal with a larger ‘Indian problem’ as it were, there was a couple of rogue bands of tribes out of Kansas that had no home -- the band of Shawnee and the band of Delaware -- and in that treaty the United States asked us to take them on as citizens. So they became Delaware Cherokees and Shawnee Cherokees.

In the same language of that treaty, the Freedmen were emancipated, of course. In U.S. history, the Emancipation Proclamation had been signed and in effect was promulgated to the tribes. So subsequently, in amendments to the 1866 treaty, the Freedmen were given citizenship within the Cherokee Nation and went on to serve in several leadership roles. One of the foremost was Stick Ross, and still many areas around Tahlequah commemorate his leadership as a Freedmen councilor -- the same office that I held. Upon statehood, the wheels came off of everything, and basically we were this close to being terminated, but yet the citizenship status of the Freedmen maintained. And historically you can go back and look and anytime there were resources of any type -- money, payments for the lands that were taken from us -- somebody would try and disenfranchise the Freedmen or they’d have to fight for their rights. So this continued well through the 1960s and when we re-established our new government, the fight continued. So in the 1980s, there was what we call the CDIB law -- CDIB is Certified Degree of Indian Blood. It’s a federal mandate that says you’re a federally recognized tribal member and that law was passed, in effect, keeping the Freedmen out.

There was a case in the 1980s known as the Riggs Decision, which upheld the constitutionality of that legislative act. And as time has gone on, our government has matured and evolved and we recently went through a process for constitutional revision. It was really a historic thing for the Cherokee Nation. We had a broad spectrum of individuals from different communities, different groups that came together and we looked at our constitutional government and said, ‘What things need to be better?’ Obviously, there were some things around separation of powers, staggering of terms, office of attorney general was created, term limits on public officials, empowerment of our judicial branch went from a judicial appeals tribunal to a full Supreme court, and then they created two seats, in an unprecedented move from a tribal nation, to recognize those tribal citizens who didn’t live inside of the boundaries the Cherokee Nation. Well, with most tribes, that is the majority of the tribal citizens. So with respect to at-large Cherokee, those living outside the boundaries, a seat -- that I sought for and was able to get -- represented those, easily a majority, of the Cherokee citizens living outside the boundaries. So when that process came to be, it was up to the council to determine who was going to get those seats. And without question, everything that was on people’s minds was about the Freedmen. And we did have an initiative petition referendum that happened in March, a little over a year and a half ago. But prior to that, the year prior, was a decision that was handed down by our Supreme Court that reversed the Riggs Decision, which essentially affirmed the citizenship rights of the Cherokee Freedmen.

So when our court handed that down, that was the real tipping point that started off this whole controversy. And our court basically looked at the constitution and the language and said that even though laws had been passed to keep them out of the constitutional, from a Supreme Court perspective, they still viewed their right as citizens as still intact. And when that happened, very quickly after, the executive branch, Chief [Chad] Smith approached the council in a regular session and encouraged them to undo what the Supreme Court had done. And his words, you know, three people changed the course of history, which is to me a sad portrayal of a respected branch of government and encouraged the Cherokee council to pass a bill that would put the Freedmen’s citizenship on the slate for general election. They wanted a special election to happen subsequently after that, which would have needed a two-thirds majority and it failed. So thus became the tool of the Cherokee people, which was initiative petition and we had a special election. In true political terms, special elections, like any other, all of us who vote -- most of us don’t vote and it’s no different for Indian people -- and a very small percentage of people came out to vote, 7,500 I believe was the number, to vote on whether or not the Freedmen were to be disenfranchised or not. And sadly, basically a 70 percent to 30 percent [vote], they were disenfranchised.

Now after that became more of my involvement as a tribal leader. When interviewed for the seat of councilor at-large, they asked me some pinnacle questions, first of which is: do tribes have the right to determine their own membership? And my answer, along with everyone else, was ‘Yes! But in doing so, we have to keep in mind our own morality and our belief system. And more importantly, is this the right thing to do or not?’ So the two seats were split, as was the power on the council, and it continued that way for some time to come. Since then, the fallout to the Cherokee Nation has been on a global basis. I know I was interviewed by the New York Times directly after the vote and my fate was cast politically when asked the questions, what my opinion was on the topic. And I basically quoted that I felt this was a sad chapter in Cherokee history and that my words were, ‘This is not my Cherokee Nation. My Cherokee Nation honors all parts of her past and history.’ And by many people, that moral stance, I was vilified by many public opinion articles. I think at one point I was called a ‘treasonous coward’ for not supporting the will of the people and the movements of our tribal government. In my opinion, just quite honestly at its core, regardless of what the spin was, I saw the local racism and I viewed it as a cancer within the Cherokee Nation that needs to be expelled. And that certainly was not what the public spin on it was. The public spin has been ‘tribes have the right to determine their own membership.’ The Cherokee Nation and many tribal nations are in a very precarious situation. So from a political perspective, many have argued in the media and other leaders in the halls of Congress and the Senate today that we have lost the moral high ground. There was a poignant political cartoon in the Tulsa World, which certainly keeps up with a lot of our events, and the cartoon had two large water fountains up here and two smaller ones here, and the ones up above said ‘White and Cherokee’ and down here it said ‘Colored and Freedmen.’ And basically, for all intensive purposes, our disenfranchisement of the Freedmen is sadly a repeat of the Jim Crow laws, which Oklahoma began as; you look at Bill No. 1 out of the House and Senate that passed into law was a Jim Crow law, segregation law, in Oklahoma. So that’s kind of the framework for what has transpired.

One of the reasons I wanted to come visit the class and American Indian Studies program was to share my experience, especially for those of you who all are in tribal affairs, might be representatives of your tribal governments someday. We need to think about every decision that we make as leaders and understand the impact of what might happen. And more importantly, from my perspective, is that as complicated as politics might be, that we need to look no further than our own belief system, whether something is moral or immoral. The reality of the impact, as Manley said -- what has happened with the Cherokee Nation, what still might happen -- this issue has certainly pitted us against former allies. Today, members of the Congressional Black Caucus in Congress led by Congresswoman Diane Watson out of San Francisco is a co-sponsor, along with 21 other members of Congress, who have a termination bill ready to be submitted into committee. There’s tacit support right there from the State of Oklahoma and our two senators, [Jim] Inhofe and [Tom] Coburn, who are ready to pick it up in the Senate. Basically, it would terminate our federal recognition as Cherokee Nation until we reinstate the Freedmen. Well what does that mean? That cuts off to $300 million, 7,000 jobs, our right to game, and certainly, our prominence and our position as arguably one of the best-practiced tribes in the United States. We have also pitted ourselves against the NAACP who come out on a local, regional, and national standpoint to crime what the Cherokee Nation has done. And you know this is a larger discussion around sovereignty. And for somebody who watched the Cherokee Nation go from one person to 7,000 and the prominence that we have today, I never thought that I would be in any position to question: what is sovereignty? But I stand here today questioning what it means to be sovereign as tribal nations. In this instance, many can argue that what we did was inherently racist. To deny that there is racism in the world is foolish. To see it and not do anything, to me, is a tragedy.

Question: How were citizens educated on this issue?

Well in terms of the vote itself, I was sadly disappointed because there was zero efforts put towards the education of both sides of the issue. It was squarely, without question, from the Cherokee Nation’s perspective they only made the argument for disenfranchisement. And basically it was under the spin of...they used the argument of ‘by blood only.’ Now the first name of the bill as it came through Cherokee Council, I mean pretty much, just said the Freedmen Disenfranchisement Bill and somebody very quickly said, ‘Oh, that sounds racist! Let’s not call it that. We don’t want people to get the wrong idea.’ So they called it the ‘By Blood.’ The net effect of the policy is excluded only one class of citizen, and that was the Cherokee Freedmen. So they’re saying ‘by blood’ and you only have to have Cherokee blood. Well we’ve got Shawnees and Delawares who are citizens who are not Cherokee and yet they’re allowed to stay in. I said it was very disappointing to me because I, as a leader of the Cherokee Nation, really just took it on my shoulders with a handful of others who had political aspirations or just out of the drive of morality, tried to go out and talk to people. I went to community groups all around the United States to try to educate people on this topic, but it was one against the machine and the machine wanted them out. I very quickly learned that there was a succession of ideology within the Cherokee Nation that had long kept them out. And I wasn’t signing up to be a part of the club. And there was fierce resistance against. So those that were educated on the topic probably were given the rationale and the argument to disenfranchise. And most of them were, you know, on the ‘by blood’ sort of discussion. ‘We have the right to do this. We’re a sovereign nation.’ Well the reality is, I mean, we’re as sovereign as the plenary power of Congress allows us to and there’s no tribal nation in the United States that is not affected by the whim of Congress. So I do think that a lot of people chose not to get involved. Again this to me, this is really about citizenship on a broad level, not just citizenship rights of Freedmen versus others. It’s not just about being an active citizen and paying attention, but it’s paying attention to what’s really happening and seeing through what is rhetoric and understanding what the issues are. I think if people had known that we would’ve been in the position where we are today, which is probably not unlike the United States and our war in Iraq, we wouldn’t have done it all again.

Has the Cherokee Nation reached that level of understanding? Probably not yet. There are many pundits within the Cherokee Nation, activists who are saying it’s going to take us to get terminated for us to see what we did was wrong. And there’s certainly parts of me that don’t disagree with that because it’s still barreling along; every chance that Chief Smith gets, he beats the podium about sovereignty and why we have the right to do this. My position is very simple. As tribal nations, we do have few aspects of sovereignty left and we do have the right to exercise those [rights. The] question is with that right comes great responsibility. Because the potential ramifications of all of this is that from a legal perspective many of the tribes, we have that right to determine our membership. We don’t have control over judicial matters. There’s Public Law 280, there’s Indian Reorganization Act, all these things that diminish our rights as sovereign nations. One of the last ones was to determine our own membership and Cherokee Nation chose to run this gauntlet to the end. It’s a wrong one to take to the hoop in my opinion. The ramifications are that it could overturn Santa Clara Pueblo v. Martinez and ruin it for all tribes. There’s a case right now in federal court Vann v. Kempthorne, which is essentially saying that U.S. citizens, African-American citizens, were promised citizenship in the Cherokee Nation based on the 1866 Treaty. It was a sovereign to a sovereign, and they were guaranteed citizenship and now they’re being disenfranchised. And they’re protections are under the 13th Amendment, which is basically in the case that’s gone before [in the] U.S. District Court in Washington [D.C.] is around that disenfranchisement, which takes away most fundamental rights of citizenship, which is the right to vote. In the past, sovereign immunity of the tribes, precedent of Santa Clara Pueblo v. Martinez would’ve thrown it out of court. But not only did U.S. District Court in Washington [D.C.] accept it as a federal case, but they joined the Cherokee Nation as a defendant. So perhaps, already the sovereign immunity has been blown off. It opens it up to federal intervention. Now your purists of sovereignty would say that that’s a tragedy. Others are going to look at it and say, ‘Well, there needs to be some sense of justice.’ If Indians don’t treat their own people right, where’s the recourse?

Question: How has the media responded to this event?

Two comments: one is, what makes this such a media magnet? And it definitely had a national and a global appeal. I’ve got a stack of emails after all this, people condemning the Cherokee Nation for what they did. One of the main differences is in the fact, I don’t think anyone can deny that there’s racism all across the world. And no one’s going to deny that there was racism within Cherokee citizens beforehand. The key difference is this was an organized effort by a tribal nation, and a prominent one, to disenfranchise. That was one. The second has to do with our standing as Indian nations in the United States. There’s a perception that because of gaming, that we’re all rich, fat, dumb and happy and that this was the first swipe against sovereignty. Many people think that Indian tribes, that we’re all doing extremely well. The reality is that the social demographics are still against Indian people and we’re behind the eight ball probably more than any other racial affinity group in the United States. But yes, has this situation damaged many tribes? I think most definitely.

Question: Don't the events surrounding this decision share similarities with the events preceding the Trail of Tears?

The ironies in this are limitless. Our hypocrisy in the Cherokee Nation knows no bounds, because that is no different than the Marshall Trilogy and Cherokee Nation v. Georgia and finally Worcester v. Georgia, which was the pinnacle landmark case for all federal Indian law. The reason that Indian tribes have any sovereignty today stems from those cases, the Cherokee trilogy. Ultimately, we fought. Cherokee Nation fought for our ancestral homelands in the Southeast. We won in the Supreme Court and again, in a constitutional crisis for the United States, President Andrew Jackson's comment -- after the Cherokee’s rights were to the land were affirmed -- his comment was, Andrew, I mean, ‘Justice Marshall has made his decision now let’s see him enforce it.’ Meaning the president has the power of the army and I don’t care what the Supreme Court said, I’m going to march them out on the Trail of Tears. So yes, the irony has just struck close to many of patriots in the Cherokee Nation saying this is no different than what Andrew Jackson did. This is a slight to our judicial branch and lack of respect for what should be the final word. It’s also ironic that today our only defense against the Termination Bill in Congress has been a very thinly veiled statement by Chief Smith, which is saying, ‘Don’t do this. Let us play this out in court.’ It’s already been played out in court in the Cherokee Nation. You know, we are in a constitutional crisis. When you don’t heed the words of the Supreme Court, then you’re in a constitutional crisis.

Question: How does the leadership justify ignoring the decision made by the Cherokee Supreme Court? Do they just make the sovereignty argument?

It’s certainly come up. It was a matter of timing. There was a precarious window in between the initiative petition referendum, a vote of the people, which validated and changed the constitution and the ruling of the court. So in between then was when I was most vocal and I certainly saw the resentment as I said, ‘We’re in a constitutional crisis. We’re not paying attention to our Supreme Court.’ After the vote, then they could easily stand over here and say, ‘Hey, we’ve changed the constitution. This is not a crisis anymore.’ But the reality is what does it do to our case law in the Cherokee Nation? And also, what does it do on a federal level. This begs a whole new question of what happens when a tribe breaks a treaty. Every time that a federally recognized tribe goes to court to defend its sovereignty they’re citing a litany of the legal continuum. And in our case, if we violate the treaty of 1866, that’s one of the three legs of federal recognition is the legal continuum. You have to prove that you have a relationship with the United States. If we sever it, is that as well? So there’s two points that are now vulnerable. An attack of Congress on our sovereignty or could someone in the Bureau of Indian Affairs say, ‘Look, they no longer meet the requirements of federal recognition.’

Question: What was gained by this decision? And what was lost?

Well at the time that the vote happened, and again I will forever in my...if that was the end of my Cherokee political career that’s what I will be remembered for, the statements that I made in the New York Times. What I said at the time -- and again I was very tired at the time about 11 o’clock at night when that reporter talked to me -- and I said I felt it was political pandering by Chief Smith to get re-elected, pandering to a racist vote in northeast Oklahoma. And they certainly felt that was newsworthy and published it. So that was certainly one of the short-term gains. But at the same time from a local perspective, I think Chief Smith has engineered a mastery...he’s defending sovereignty. So no matter what the outcome, he’s saying, ‘I’m defending the right of the people. This is the will of the people!’ I’ve heard that so many times, it makes me sick, with such a low turnout, 7500 out of 265,000 potential citizens, obviously not all of which are of age to vote but still a very poor turnout. That is not the will of the people. And more importantly, and again this is, there were a lot of people that didn’t agree with it. Did they get out and vote? No. So what was gained? Maybe another election, maybe an assertation by Cherokees that defended their identity; I said it was that political satire in the cartoon form was so hitting to home. I mean everybody said ‘oof’ when they saw it because it brought forth all the images of beginning of statehood and Jim Crow laws. And this goes to a much broader discussion about identity. And identity is the most important thing we have as human beings. These are some of our traditional teachings: to know where you came from, to know where you’re going. They’re tied. And so much of America, we embrace this melting pot philosophy that many people don’t know who they are. I mean all my life and the rest of my life people come up to me say, ‘You’re Cherokee, aren’t you?’ and I say, ‘Yeah, I’m Cherokee.’ And they say, ‘My great-grandmother was a princess.’ ‘Well, mine were nothing.’ But it’s a desire to be a part of something.

And I think some of y’all have read Circe Sturm’s book on blood politics. And interestingly enough, Circe’s work foreshadows what’s happening. It’s her latest work, which is unpublished at this point, talks about identity and she focuses in on Cherokees. And she focuses more on what we, I think, sadly have to refer to within the Cherokee Nation, is potential ‘wannabes.’ She talks about there is well over 440 of these groups across the United States across 44 different states, that they’re groups that self-identify as being Cherokee. All of which have some loose association with ‘We fell off the Trail of Tears. We decided to get off of the Trail of Tears.’ In reality, [as] a student of history, as one of the instructors of Cherokee history, those incidents were very, very small. And from a tribal perspective, we held on together and many people died. But is there any mathematical possibility that all those people could be out there? No.

One of the examples that you might see in the media as well is Ward Churchill; he’s one of these. And I know Ward. I even consider him a friend of mine. But I know the story. Before all of this happened that his grandmother told him on her deathbed, ‘You’re Cherokee.’ So he took that at face value. He somehow got caught up in this whole national battle, basically over censorship and his position on the war. But people went in and studied his genealogy. The only tie they found with an Indian was and Indian fighter in the Southeast. So it just makes you wonder who in his family, out of guilt from him being an Indian fighter, or their desire to have a grander part of American history? To me it goes back to even the guilty conscience of America for what they did to the Native Americans. I was growing up, and I hope it’s different today in state-sponsored curriculum, but they didn’t say what happened in Oklahoma. They didn’t say that the land was taken from the Five Tribes. They didn’t describe that Sooners were the people that stole Cherokee land before the land rush was even sanctioned. All these things are just ignored. So maybe this is some way that people can identify with something romantic that America has lost.

Circe and I talk about this stuff all the time. We get as philosophical as we can, but trying to regain something that we lost through identity. And I said identity is one of the most powerful things that we have. We want to know who we are and where we come from. And in some sense maybe people are jealous of us. Certainly within the Cherokee Nation, with this vote, that was without question. That was a very broad stance by a number of people that they felt that this was a way that they could gain credibility. Even though I’ve only got one drop. We’ve got people that are one over 2,048. This is a fraction of one percent. And if you’re going to look at determining tribal identity by blood quantums, we’re in trouble. Because all it takes is one of Congress to say, ‘You know what, 1/2,048 is not an Indian.’ And I’ve never endorsed that. To me this is what this vote is moving towards. Whether we like it or not, it’s pushing it towards because all it takes is a member of Congress to look at it and say, ‘Well you kicked out the Freedmen, you kicked out the black people. So you’ve got people who aren’t even real Cherokees, so let’s get rid of them.' There’s another 5,000. There’s another 5,000 with the Shawnees and Delawares. And what are all these people who are not? Ninety percent of the Cherokee Nation is under one-quarter blood quantum. So if somebody put a quarter blood quantum, we’d go from 265,000 to 30 or 40 at best. And then what have we won? What did we gain? We’re not gaining much. What have we lost? Well, potential sovereignty, one of the last bits for all tribes, the right to determine our own membership. We put at risk, tribal nations as being inherently racist. We lose the possibility of being a moral leader. We’ve lost the moral high ground.

And I’ve heard so many quotes of the Cherokees. ‘The oppressed have become the oppressors,’ the bylines in the BBC Global after all of this happened. The day of the vote was the same as Selma, Mississippi and that was the way they viewed it. Well, in a day commemorating the terrible point in racial policies in America. Sadly, the Cherokee Nation, a prominent tribe in the United States, has now disenfranchised the Freedmen. They’re not citizens of their own nation. We’ve lost so much and I don’t know how we’re going to make it up. We’re so far from the point of...to me, that’s the point I got up and spoke on. ‘This isn’t over until we get on our hands and knees and beg the Freedmen for forgiveness.’ And I look at a room of tribal leaders and they’re… (motions a turned head). I’m speaking blasphemy to ‘sovereignty.’ But to me this is no different than my own values. ‘Do unto others.’ It’s the Golden Rule and we’re not following that. And it’s based on the chest beating of ‘We’re sovereign. We have a right to do this.’

Question: How Do You Think We Should Define Citizenship?

Well, my first answer on all this is this really comes down to an interpretation to what it means to be a member of a nation. And to me, it’s a slippery slope to try to define around race. And the first reason I think it’s so detrimental is because if we define it by race, it’s going to be limited to very much flawed data, where it comes from. The Cherokees, all Five Tribes in Oklahoma, our membership comes from a flawed set of census records called the Dawes Rolls, which is around the Dawes Commission whose whole purpose was to disenfranchise our land base. On those rolls are Freedmen so there’s a reason in our Supreme Court why they were deemed citizens, because the Freedmen citizens are on the rolls. Beyond that, arguably up to at least a third if not half to two thirds of the Freedmen have Cherokee blood. At the time of the rolls, people looked and said, ‘You’ve got Black blood. You’re on the Freedmen rolls.’ We had multiple exceptions of that brought to the Council of showing us that they were more than just exceptions of it. But to me, a mark of a great nation, its citizenship is based not on race. Is the United States based on race? God forbid, what would happen if it were? Great nations are defined by common cultures and history, and our sense of community, perhaps ideals beyond it. That’s one of the reason to me why this is just a poor slippery slope of a discussion of having identity based on race alone. This doesn't make us great nations. Matter of fact, whenever you begin to look at blood quantum and racial definitions, you look at Apartheid, you look at Nazi Germany with Hitler, you look at the American eugenics movement early in the United States; these are very sad points in history. But to me again, race is just, it’s a very poor foundation for citizenship. It should be much broader than that. More importantly in the United States, we’ve got the 13th amendment, which provides equal protection for all citizens, protects against racism institutionalizing governments.

Question: What Are Your Next Steps With This Issue?

Well my parting words after I lost the election to the same mathematical principle that the Freedmen lost their citizenship, my parting words on the Council were, ‘I look forward to being, continue to be an active citizen in the Cherokee Nation.’ And I still hope to. I’ve had several people make comments to me and it’s interesting when people say stuff about you like this, but one of the comments that stuck in my head was, ‘Taylor, I can’t decide whether you’re well before or well after your time.’ And one of the other comments that really struck home with me was, ‘You have to be prepared.’ I asked for moral and spiritual support from my home community and this is one of the areas that Manley and I share -- a common belief system, where we believe prayer, we believe in getting support, and I asked for a prayer ceremony. One of the outcomes of that was by a very wise person who looked at me and said, ‘Taylor, you’re going to have to be prepared that the seed you’ve planted may not come to fruition for many years. And many people are going to misinterpret what you’ve been trying to do. And you’re going to have to continue to be prepared to be attacked for that position where the people misunderstand your position and what you’re trying to do.’ But they encouraged me to continue to push that.

As time has gone on, I find that there is definitely a need on the national Native front as well as within the local politics of the Cherokee Nation that there needs to be an answer. A lot of people I know, Manley challenged me on that before. Our discussion earlier was, ‘Well you’ve talked about that this isn’t right, but what is the answer?’ And again that’s where I come back and say citizenship is the answer for all the tribal nations. Those parameters need to be defined and encouraged in a healthy matter. But to me it’s taking away from race and more in terms of what really matters to us as any collective group of people, tribal peoples or not, or a great nation. But it’s a common culture, history and a sense of community. When we talk about the Freedmen, they walked on the Trail of Tears with us. Yes the invention of slavery was not ours, but sadly we embraced it. We embraced the whole antebellum culture of the South, the plantation economy. That’s why we were called 'civilized.' Where’s the irony in that?

So to me, we have to build a greater society, one that is just as well. Those principles have to be based, and to me we don't have to look any further than our own culture. The Harvard Project, we talk about that culture matters so much. And I just look back to our base teachings of the Cherokee, of our [Cherokee language] society, keepers of our wampum belts that come from the Six Nations. We’re a part of that legacy. And it talks about the white path of how you’re supposed to live. And we have many teachings. The one I always cite is, ‘As leaders, as individuals even, every decision you make you have to keep in mind the next seven generations.’ And when I had to look at myself in the mirror and go to sleep at night, the answer was clear on the Freedmen issue -- that if we made this decision, it was going to harm things for up to seven generations. And to me those teachings are just there. The base teaching of all Indian peoples that I’ve ever seen is ‘be good to one another.’ All of our ceremonies, our dances, our prayers, everything, just encourages us how to survive as a tribe.

Our tribe is just, we’re communities but we’re tied through culture and history. We’ve always had people who are not a part of our bloodlines. Look at Cherokees themselves. We’re an amalgamation of peoples. We have influence from the Southeast. Our own origin stories say that we came from probably Polynesian island, came into South America and moved up. Our language is the last surviving southern dialect of Algonquian. We’re a New England tribe by much of our culture. We are an amalgamation. You look at the Muskogee Creek Nation, look at the Seminoles; they’re collections or confederacies of vast different cultures. So we have to find what’s good. That should be our beacon.

Question: What Tools Did You Need in Order to Make Your Stand on This Issue?

That’s probably the toughest question of them all. I look back to my own upbringing and fortunately I had two parents who were involved around a lot of those in particular with the Cherokees -- my father, and he grilled us all accordingly -- but there was a very strong emphasis on ethics. From the first time you bullied somebody in first grade, or you got bullied and didn’t fight back, we got grilled. I think without question, now I realize that my father was grooming us all. And no matter what the situation, you had to explain why you were doing something. And we had personal edicts in the family. First of all was do what the old folks told you to do: go out, get a good education, do the best you can, get the best education you can get and then go home and serve your people. Well that was a lot of rhetoric until I returned home and had to do it. The more difficult part was sticking to the ideals. Swaying to public opinion is a very easy thing to do. Sticking to one’s morals is very different. And to me, you don’t have to look past the little voice in your head. That’s what they taught us at business school in the wake of all these business atrocities on Wall Street. Harvard tries to come up with a whole sentence of what is ethics? And the best answer that they could ever tell us was just a little voice in your head. If you question one thing about it, then it’s probably not moral. Having the fortitude inside to make that decision and to stick with it when you’re attacked on a daily basis; I don’t have any words. Myself, I rely on my spirituality, the belief system that I know is right regardless of what happens, you try to do the right thing. And these are, as tribal people we have these teachings. Be good to one another. My grandmother said, ‘Your worst enemy, no matter what, remember they’re human. Go up and shake their hand. If their mother’s sick, you ask them how their mom’s doing.’ She goes, ‘I don’t care how much, you can’t do that, don’t say anything,’ she said. These are just the teachings and we have to stick to them. Big picture, life is this short. You’ve got one chance. Me, I can live with myself. I made a decision. I didn’t sway to public opinion and I’ve been attacked all the way through for the stance I’ve made. Hopefully, it will provide a different test for people to follow.

Final Thoughts on Citizenship

Russell Thorpe, now at the University of California, he’s a Cherokee scholar and he writes on a topic called mathematical genocide, which is essentially explaining and proving mathematically that if you have blood quantum that, I think the number was if there was a quarter, which is what was suggested by the Indian Reorganization Act in the United States, that tribes would be, you’d either be so watered down between different tribes or intermarriage outside the tribal realms that there would be no more tribal nations by 2070. But my parting thoughts are on, I spent time overseas in London in Europe, and to me the British culture, the British Empire is really a way of thinking and a language and a way of treating one another. And while the English don’t own or dominate the British Empire anymore, their culture survives. And I agree with you. We have to determine, we have to come up with our own culture, our own way of identifying those values. And maybe it’s matters of the heart or maybe it’s the teachings, or a combination of all of them, or the experiences that we’ve all been through together. Once again, thank you very much."

The Unintended Consequences of Disenrollment


For most of the modern tribal self-determination era, American Indian nations have emphasized inclusion. Starting in the early 1970s, higher tribal membership numbers equated to higher federal self-determination dollars. As tribes otherwise redoubled their efforts to reverse the destruction caused by preceding federal Indian removal, assimilation, and relocation policies, tribes found strength in numbers through expanded membership. Once-terminated tribes that were restored over the last few decades were particularly aggressive about bulking up their membership rosters in order to rebuild everything that the United States destroyed in the 1950s. Because of the once normative nature of American indigenous kinship-based systems of inclusion, the Indian Nation rebuilding efforts were second nature...

Resource Type

Galanda, Gabriel S. "The Unintended Consequences of Disenrollment." Indian Country Today Media Network. February 2, 2015. Opinion. (https://ictnews.org/archive/the-unintended-consequences-of-disenrollment, accessed February 22, 2023)