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'Double whammy' dealt to siblings seeking enrollment
Wednesday, September 14, 2005

The federal government can't force tribes to make decisions on enrollment matters even if the process seems unfair, the 9th Circuit Court of Appeals ruled on Tuesday.

In a short opinion, a three-judge panel of the court expressed some sympathy with four siblings who are trying to join the Table Mountain Rancheria of California. Kathy Lynnette, Larry Paul, Jerry Lee and Chad Elliot Lewis say the tribe has failed to act on their enrollment application even through their father is a member and their grandparents were on the base roll.

Tired of waiting for a response, the Lewises sued the government in hopes of forcing the tribe into action. But the court said the siblings can't attempt an "end run" around the tribe's sovereign right to decide its own membership policies.

"Although their claim to membership appears to be a strong one, as their father is a recognized member of the tribe, their claim cannot survive the double jurisdictional whammy of sovereign immunity and lack of federal court jurisdiction to intervene in tribal membership disputes," Judge Mary M. Schroeder wrote in the eight-page decision.

The Lewis siblings asked for membership in 2000, the same year their father was accepted in the tribe. Membership would entitle them to share in revenues from the successful Table Mountain Casino in Fresno County. With fewer than 100 members, each person receives an estimated $350,000 a year from gaming revenues.

According to the decision, the only way to gain membership is through the tribal council or the general council. But the Lewises say tribal officials and existing tribal members don't want to see other people enrolled. Some people have actually been disenrolled, according to an August 2000 article in Indian Country Today.

So rather than sue the tribe, the siblings sued the Interior Department, the Bureau of Indian Affairs and the National Indian Gaming Commission. They wanted the BIA to force the tribe into opening the rolls and to stop the flow of federal funds and the distribution of casino revenues until that happens.

The court, however, said it can't ignore the fact that the tribe was left out of the lawsuit and has immunity from lawsuits. Further, Supreme Court precedent dictates that federal courts lack jurisdiction to resolve "purely intramural matters such as conditions of tribal membership," the 9th Circuit panel said.

"These doctrines of tribal sovereign immunity were developed decades ago, before the gaming boom created a new and economically valuable premium on tribal membership," Schroeder wrote.

The Lewises attempted to get around the sovereignty question by arguing that the tribe waived its immunity when it sued to regain federal recognition. But the 9th Circuit said that was a limited waiver that doesn't apply "in perpetuity for the resolution of all claims to tribal membership."

The siblings also attempted to get around the question by stating they have no way, within the tribe, to resolve their dispute. But the 9th Circuit said it has to respect tribal ways of doing business.

"We therefore must recognize the tribal council and the general council as competent lawapplying bodies in this case," the court said.

A third attempt to go through the Indian Gaming Regulatory Act also failed but the court ended its decision with a sober statement about the apparent lack of fairness in the dispute, suggesting that another power might need to address it.

"We agree with the district courtís conclusion that this case is deeply troubling on the level of fundamental substantive justice," the judges said. "Nevertheless, we are not in a position to modify well-settled doctrines of tribal sovereign immunity. This is a matter in the hands of a higher authority than our court."

The Table Mountain Rancheria is just one of several enrollment disputes in California. According to some tribal activists, upwards of 2,000 California Indians face disenrollment from their tribes or have already been removed.

Two lawsuits have been filed by former members of the Pechanga Band of Luiseno Indians, a wealthy casino-owning tribe. One case was rejected on the grounds that Public Law 280, which grants civil and criminal jurisdiction on Indian lands to the state, doesn't authorize an enrollment lawsuit that "goes to the heart of tribal sovereignty," a state appeals court ruled on August 9 of this year. The other case, also based on Public Law 280, is pending in the state courts.

Other cases, involving former members of the Redding Rancheria and the Table Mountain Rancheria, have been unsuccessful.

Get the Decision:
Lewis v. Norton (September 13, 2005)

Relevant Links:
Pechanga Tribal Disenrollment - http://www.pechanga.info
Bureau-of-Indian-Affairs.com, Disenrollment site - http://www.bureau-of-indian-affairs.com

Related Stories:
Pechanga Band says money not behind enrollment (08/10)
Disenrollment suit dismissed in California (8/9)
Ousted Pechangas plan appeal of enrollment lawsuit (8/9)
Disenrolled Pechangas seek $38M in damages (08/04)
Pechanga Band enrollment dispute closely watched (07/11)
Court hears Pechanga Band enrollment dispute (7/7)
McKosato: Greed behind ouster of tribal members (05/23)
Opinion: Gaming has turned tribes on other tribes (5/20)
Ousted Redding Rancheria members head to forum (5/19)
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California AIM blames greed for mass disenrollments (5/16)
Editorial: Disenrollment becoming too common (04/01)
Ousted Pechangas file another lawsuit against tribe (03/28)
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