ASKED & ANSWERED: Jana Berger Simmons on tribal membership

By Steve Thorpe Legal News The Saginaw Chippewa tribe recently made headlines when they removed 50 individuals from their membership rolls. The move turned tribal members against each other and is likely to spark new legal actions. Jana Berger Simmons is a partner in Foley & Mansfield's Detroit office, where she focuses her practice in American Indian Law and tribal law, civil litigation and product liability and toxic tort law. Licensed to practice in Michigan, California and numerous tribal courts, she counsels and assists clients with matters involving tribal enrollment and disenrollment, Tribal Constitutions, ordinances and regulations and federal Indian law issues. She currently is pursuing a Master of Jurisprudence in federal Indian law from the University of Tulsa School of Law. Thorpe: Tribal members being "disenrolled" is not a new story. Give us some history. Simmons: During the late 1700s to the early 1900s, the federal government employed a policy of assimilation -- often by force -- with regard to our country's tribes. White culture regarded Native Americans as an uncivilized people who would benefit from total integration into society. Disastrous! Indians were left impoverished, many disbanded and separated from their lands, customs and communities. The 1930s and the Indian Reorganization Act brought about a new federal policy to promote the re-establishment of tribes. Receiving "federal recognition," tribes were encouraged to operate as governments. During this period, many identified and enrolled members -- generally selected according to blood or lineal criteria -- thereby establishing their tribe. The Indian Gaming Regulatory Act of 1988 brought about sweeping changes whereby tribes were permitted to operate gaming establishments on their reservations under federal law. The purpose of IGRA was to create financial opportunity for tribes. For some, it has proven hugely successful with per capita payments to tribal members reaching above six-figures. Many speculate that IGRA and gaming brought about the disenrollment tidal wave we now see across the United States, as tribal leaders oust members to secure more financial resources for current agenda. And, not-so-coincidentally, "money" and "greed" are typically blamed for pitting tribal member against tribal member, uncle against nephew, sister against brother. This is particularly unfortunate when one considers that "sharing" and "community" underscored reservation life. Our cash economy had no significance to tribal culture. As one Navajo is quoted in Charles Wilkinson's "Blood Struggles: The Rise of Modern Indian Nations": "When a relative needed help, you helped them out. When you needed something else, you could rely on a relative to help out, it all worked out in the long run. With money it doesn't work anymore, now the relative with the money is expected to help out, what is needed for most everything is money and the poor relatives never have any." Thorpe: What might an individual lose as a result of losing their official tribal standing? Simmons: In some instances, the loss of certain financial benefits -- sometimes hefty, sometimes nominal -- issued by tribes to their members as per capita payments from gaming operations. Housing, health care, scholarships and educational opportunities, tax credits. There are numerous benefits available to members of state- or federally-recognized tribes. These are the things that everyone talks about when you hear about disenrollment. But, what is often forgotten and woefully underestimated is the most significant. The words of a tribal judge resonate with me as an attorney who handles enrollment and disenrollment cases: "Tribal membership for Indian people is more than mere citizenship in an Indian tribe. It is the essence of one's identity, belonging to community, connection to one's heritage, and an affirmation of their human place in this world. In short, it is not an overstatement to say that it is everything. In fact, it would be an understatement to say anything less. Tribal membership completes the circle for the member's physical, mental, emotional, and spiritual aspect of human life." Thorpe: The tribal enrollment issue seems to be a swirling mix of law, politics and money. How do you, and the courts, sort out the three? Simmons: For me, disenrollment cases always begin with careful analysis of the tribe's constitution, ordinances and regulations pertaining to membership eligibility requirements and the process for disenrollment. It is not unusual to discover vague terminology or eligibility requirements that are subject to varying interpretations, thus creating the basis for an enrolled member now facing disenrollment. So, you have to remain mindful that history may play an integral role in deciphering the eligibility requirements. There is no question that politics and money may play some role in any disenrollment case. However, neither are useful considerations to resolving legal questions. Moreover, I find that neither promotes the integrity of tribes' sovereign status to determine its membership versus the right of an otherwise eligible member to retain his or her place within a tribe. To this end, tribal courts -- at least for those tribes with a "checks and balances" system of government similar to our own -- are responsible for interpreting and applying applicable law as opposed to legislating or pursuing political agenda. I have been fortunate to practice before highly qualified tribal judges who were careful to steer clear of "politics" and "money" while remaining very mindful of their role in tribal government and the impact of case law on the future of the tribe. This is not to say that I ignore politics and money considerations when handling disenrollment cases. Both deserve attention because they may often drive a tribe -- or an ousted member -- to pursue legal action. However, I don't enjoy making those assumptions and "mud-slinging" lends very little to the possibility of compromise or to the honor of tribal membership. Thorpe: Although we tend to focus on the Michigan tribes, this is a national phenomenon. One expert says as many as 6,000 members have been ousted from 54 tribes. How do the issues differ in other cases? Simmons: Disenrollment cases typically involve some sort of challenge to the tribe's disenrollment determination as being inconsistent with the tribe's own Constitution or whatever rule or regulation that originally resulted in the now-ousted member's enrollment. In my experience, "mistake" is often cited as the reason for a disenrollment. This can mean a miscalculation of blood quantum by an enrollment officer or reliance on some questionable genealogical record which appeared to establish appropriate ancestry. "Misinterpretation" of membership eligibility requirements also serves as a key basis for disenrollment. In other words, what meant "X" to one enrollment officer or committee now means "Y" to a different one. Another example -- in an attempt to tighten-up verbiage, a tribe may pass legislation forming the basis for disenrollment of certain members even though that legislation, arguably, contradicts its own Constitutional membership eligibility requirements. Regardless of the basis for disenrollment, I have never encountered one that wasn't contentious and emotionally charged. Tribes have every right to choose their membership by virtue of their sovereign status. Understandably, no tribe is comfortable when this falls under scrutiny. Indeed, some tribal officials take it very personally. On the other hand, you can imagine how an ousted member -- sometimes an individual who held a place as a tribal member for decades since early childhood, was raised on the reservation, has no other cultural experience and knows no other family or affiliation -- feels when she or he suddenly is shoved off of the plank. I've witnessed heart-breaking devastation. Differing issues in disenrollment cases come with the numerous variations from tribe to tribe of their respective forms of government and with the membership eligibility requirements of each. There is no uniformity as each tribe establishes its own criteria. There are also differences in what constitutes acceptable proof of membership eligibility, the process for enrollment and disenrollment, the means by which an ousted member may challenge a disenrollment determination, if one is available, and burdens of proof. And, remember, not all tribes have established court systems. In fact, many do not. Some may leave membership determinations to a single official or a committee. Each disenrollment case is like taking on 18 holes at a different course in a different climate with different hazard zones. Thorpe: Tribal appellate court rulings can't be appealed because of sovereignty issues. How does that work and does it leave those appealing any other options? Simmons: Not really. It is well established in federal case law that issues involving tribal membership, e.g. enrollment and disenrollment, are within the exclusive jurisdiction of the tribe. Numerous cases stand for this proposition and attempts to file disenrollment "appeals" in federal courts -- in some instances citing federal law -- have met with little success. Tribes are sovereign nations. Simply put, without an unequivocal waiver of sovereign immunity, an ousted member has as much chance of suing his former tribe as he does his State. In other words, unless Congress legislates otherwise or a litigant pursues some federal-law-loophole before a favorable federal court, enrollment and disenrollment cases will continue to remain within the exclusive jurisdiction of tribes. Thorpe: Is the legal situation regarding these tribal actions evolving? What do you see in the future? Simmons: I have to believe that tribes recognize the potential stigma that often comes with disenrollment, especially when you read news reports which pit members against each other and blame "greed" and "money" as the underlying motive. Unfortunately, these accounts could incite non-Indian populations to question whether tribes are capable of governing themselves. For example, non-Indian taxpayers who actively and earnestly support federal programs and funding for Native Americans -- money that flows from the federal government through tribes to their selected membership -- may find it increasingly difficult to support those programs if they perceive tribes as turning "willy-nilly" with their membership and, consequently, the federal tax dollars and benefits intended for those individuals. I don't have a crystal ball to predict the future of tribal disenrollment. However, should these cases become more prevalent and ongoing injustice is perceived, I suspect that Congress may eventually take some action whether that be to create a tribunal for disenrollment appeals or opening the door for litigants to bring select cases in federal court. In 2012, Wenona T. Singel, associate professor at Michigan State University College of Law, authored a paper, "Indian tribes and Human Rights Accountability," which advocates "for the creation of an intertribal regime" authorized to address human rights violations committed by tribes. Two years earlier, in 2010, another scholar proposed the creation of an intertribal appellate court to hear cases involving membership disputes. There are very compelling reasons for the implementation of an intertribal institution with jurisdiction over disenrollment cases. For starters, it allows for tribes to establish -- without federal interference -- a tribunal which is accessible to ousted members and promotes uniformity, justice and accountability while maintaining the sovereign status of tribes. This is a highly responsible approach. Published: Mon, Apr 7, 2014

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