Disenrollment is not indigenous to Native America

(c)Marty Two Bulls

An Essay on the Federal Origins of Disenrollment

March 6, 2014

Disenrollment is not indigenous to Native America.  It is a creature of the United States.

The origins of disenrollment are traced to the United States’ paternalistic assimilation policies of the 1930s.  In 1934 the U.S. Congress passed the Indian Reorganization Act (“IRA”), wherein the federal government took an extremely active role in framing tribal membership rules.  The IRA contained a definition of who would be recognized as an indigenous person by the federal government: The individual must be a descendant of a member residing on any reservation as of June 1, 1934, or a person “of one-half or more Indian Blood.”  25 U.S.C. § 476.

The United States’ intent was to limit membership “to persons who reasonably can be expected to participate in tribal relations and affairs.”   Office of Indian Affairs, U.S. Dep’t of the Interior, Circular No. 3123 (1935), reprinted in 2 Am. Indian Policy Review Comm’n, 94th Cong., Task Force No. 9 Final Report app. at 334 (Comm. Print 1977).  The IRA also urged tribes to adopt a constitution and included a boilerplate that tribes were encouraged to adopt.  And because tribal constitutions were subject to federal approval, the IRA definition of “Indian,” including its blood quantum requirement or some variation thereof, as well as concepts of “disenrollment,” found their way into most tribal constitutions, even those that did not adopt the boilerplate IRA constitution.

In fact, even those tribes that opted to forego adopting a constitution were often persuaded to adopt these concepts somewhere in their organic law as a “consequence of the [federal government]’s control over federal services and tribal monies.”  Suzianne D. Painter-Thorne, If You Build It, They Will Come: Preserving Tribal Sovereignty in the Face of Indian Casinos and the New Premium on Tribal Membership, 14 Lewis & Clark L. Rev. 311, 341 (2010).

Thus, “while it is true that membership in an Indian tribe [wa]s for the tribe to decide, that principle is dependent on and subordinate to the more basic principle that membership in an Indian tribe is a bilateral, political relationship” under which the United States had set the terms.  Margo S. Brownell, Who is an Indian? Searching for an Answer to the Question at the Core of Federal Indian Law, 34 U. Mich. J.L. Reform 275, 307 (2001).  The Indian Self-Determination Education Assistance Act of 1975, additionally required that tribal governments devise formal membership regulations, in order for the tribe to receive certain federal self-determination funding.  The United States suggested such regulations, which like its boilerplate IRA constitutions, included notions of blood quantum and disenrollment.

In all, for the last 80 years, the United States has set the terms of tribal membership, i.e., “Indian,” “blood quantum,” “membership,” “base rolls,” and of course “disenrollment.”  And for good measure, tribal acceptance and implementation of those unconscionable terms have been conditions precedent to self-determination funding since the 1970s.

Despite having invented disenrollment and foisted it upon tribal governments, the United States now suggests that it has no “business trampling on tribal sovereignty and self-governance” by interceding in tribal disenrollment disputes.  Or, as Nooksack Councilwoman Michelle Roberts — a member of a the Nooksack 306 — put it to Assistant Secretary of Indian Affairs Kevin Washburn: “It is Frankenstein in Indian country that the United States has created, and now ignores.”

Galanda Broadman is an American Indian owned firm dedicated to advancing tribal legal rights and Indian business interests. The firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in the areas of Indian Treaty rights, tribal sovereignty, taxation, commerce, personal injury, and human/civil rights.

Interesting Comment:

  1. The origins of concepts like “enrollment” and “blood quantum” can be traced back beyond the IRA era of the 1930’s to the signing of the treaties.

    Prior to removal to Reservations, strangers were often welcomed into tribes. They occasionally even became “blood brothers” and were encouraged to marry Native woman. If one was cast out of a tribe, it would typically have been due to behavior that threatened the very survival of the tribal family.

    With treaty negotiations, came a whole new set of rules. In Oregon Territory, land treaties with the United States all called for reserves to be set aside for “the Indians.” It was not until after the treaties were signed and the people were removed to their assigned Reservations that quarrels began to erupt over the definition of “Indian.” Early settlers commonly believed “anyone with one drop of Native blood should be considered an Indian.”

    On the Native side of the issue, people disagreed. Injice, Chief of the Umpqua, held the opinion that the term “Indian” in the treaty meant “full bloods” and argued that, “half breeds” and “outsiders” were not entitled to annuity payments. Other chiefs disagreed with him and ultimately, popular opinion overruled his position in the early 1860’s.

    As the years went by, other “enrollment” rules were established and dis-enrolling and re-enrolling became commonplace. By the early 1900’s, it was acceptable to leave the reservation for some length of time to work, but it was considered “abandonment” if the person did not keep in touch with friends/relatives on the Reservation or failed to acknowledge them as family. Native people defined “abandonment” as “throwing away your family” usually in favor of white society. A person successfully charged with abandonment was dropped from the roll. If a person left the Reservation to become an American citizen or make a land claim outside the Reservation, the person was dropped from the roll. However, if they returned to the Reservation, they were usually allowed to stay and their name was returned to the rolls.

    For a time, in the assimilation era of the 1920’s, children of a Native women (tribal members) married to “white men” and living off the reservation were dis-enrolled. This rule was eventually repealed and tribal government were able to reinstate the enrollment status of these children.

    By 1934, new federal policy was advanced by President Roosevelt in the form of the Indian Reorganization Act. Two versions of the Bill were presented to Native citizens in Oregon. After reading them carefully, many Native people were suspiciously because both versions seemed “too good to be true.” When asked to take a vote to determine whether they wanted the final version of the Howard-Wheeler Bill implemented on the Grand Ronde Reservation, 145 people out of 213 voters, were found in favor of the new program.

    To say that the language of the IRA was derived by the United States is true, in so much as the federal government wrote the Act and the policies that surround it. However, terms, such as “enrollment,” “blood quantum,” “membership,” and “Indian roll/census,” were not unfamiliar to Native people of this time period. These were terms that had evolved through a long government to government relationship with the United States that was not entirely one sided.

    Most Native people believe in tribal sovereignty and self-governance, and today, want nothing more than to build strong tribal nations without federal intervention. They feel very capable of developing good governmental structures and systems that reflect the will of the people and address their needs.

    In my opinion, “dis-enrollment” is a difficult and heartbreaking Native issue that should be addressed by Native people through their Native governments and according to established Native laws.


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